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JUROR WHO ASKED TO BE EXCUSED AFTER FOUR DAYS OF DELIBERATIONS BECAUSE SHE COULD NOT SEPARATE HER EMOTIONS FROM HER ANALYSIS OF THE FACTS SHOULD HAVE BEEN EXCUSED AS GROSSLY UNQUALIFIED.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the appellate division, determined a juror who asked to be excused after four days of deliberations should have been discharged as “grossly unqualified.” The alternate jurors had been excused. The juror repeatedly told the judge she could not separate her emotions from her analysis of the facts. The defendant was charged with stabbing the victim 38 times:

Pursuant to CPL 270.35 (1), “[i]f at any time after the trial jury has been sworn and before the rendition of its verdict . . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case . . . the court must discharge such juror. . . . If no alternate juror is available, the court must declare a mistrial.”

As explained in People v Buford, a juror is grossly unqualified “only ‘when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict'” (69 NY2d at 298 … ). * * *

…[ T]he record reveals that it was obvious the juror possessed a state of mind preventing her from rendering an impartial verdict and thus, she was “grossly unqualified to serve.” The juror declared forthrightly that she could not separate her emotions from her ability to deliberate and was incapable of fulfilling her sworn duty to reach a verdict based solely on the evidence presented at trial and the law. Compelling the juror to resume deliberations could not cure the fundamental problem with her state of mind. The trial court’s implicit conclusion that the juror did not “possess[] a state of mind which would prevent the rendering of an impartial verdict” (Buford, 69 NY2d at 298 …) was erroneous. People v Spencer, 2017 NY Slip Op 05118, CtApp 6-22-17

CRIMINAL LAW (JUROR WHO ASKED TO BE EXCUSED AFTER FOUR DAYS OF DELIBERATIONS BECAUSE SHE COULD NOT SEPARATE HER EMOTIONS FROM HER ANALYSIS OF THE FACTS SHOULD HAVE BEEN EXCUSED AS GROSSLY UNQUALIFIED)/JURORS (CRIMINAL, GROSSLY UNQUALIFIED, JUROR WHO ASKED TO BE EXCUSED AFTER FOUR DAYS OF DELIBERATIONS BECAUSE SHE COULD NOT SEPARATE HER EMOTIONS FROM HER ANALYSIS OF THE FACTS SHOULD HAVE BEEN EXCUSED AS GROSSLY UNQUALIFIED)/GROSSLY UNQUALIFIED (JURORS, CRIMINAL LAW, JUROR WHO ASKED TO BE EXCUSED AFTER FOUR DAYS OF DELIBERATIONS BECAUSE SHE COULD NOT SEPARATE HER EMOTIONS FROM HER ANALYSIS OF THE FACTS SHOULD HAVE BEEN EXCUSED AS GROSSLY UNQUALIFIED)

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MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD.

The First Department, in a full-fledged opinion by Justice Kapnick, concluded Family Court properly denied mother’s petition to relocate to Florida. Mother was not sure where she would live or work or how child care would be arranged. It did not appear father would be able to visit the child in Florida. The fact that father was behind in child support was not enough to show the relocation would be in the best interests of the child. Matter of Salena S. v Ahmad G., 2017 NY Slip Op 05172, 1st Dept 6-22-17

 

FAMILY LAW (MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD)/RELOCATION (FAMILY LAW, MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD)

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WITNESS TESTIMONY TAKEN OUTSIDE THE INMATE’S PRESENCE REQUIRED ANNULMENT AND EXPUNGEMENT.

The Third Department determined the determination should be annulled and expunged because a witness’s testimony was taken outside the inmate’s presence without his permission:

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In disciplinary hearings, an inmate has a conditional right to call witnesses on his or her behalf and “[a]ny witness shall be allowed to testify at the hearing in the presence of the inmate unless the hearing officer determines that so doing will jeopardize institutional safety or correctional goals” … . The regulation promulgated by the Department of Corrections and Community Supervision requires that, prior to excluding a witness from testifying at the hearing, the Hearing Officer must “determine” that his or her presence will threaten institutional safety or correctional goals and inform the inmate of such reason … . Here, although petitioner conceded at the hearing that one inmate who was in the special housing unit could testify outside his presence, the Hearing Officer failed to set forth, either on the record or on the witness interview sheet, any reason for the other requested witness to testify outside petitioner’s presence. Furthermore, the record does not disclose, with regard to this witness, any reason that the presence of the inmate would jeopardize institutional safety or correctional goals … . As there was no adherence to the Department’s regulation, the determination must be annulled … . Furthermore, although petitioner was asked what questions he would pose to the requested witness and was permitted to hear the recorded testimony of that inmate, he repeatedly objected to the testimony of the inmate being taken outside his presence. As such, petitioner did not waive his right to receive a reason for the exclusion of that witness … . Matter of Kalwasinski v Venettozzi, 2017 NY Slip Op 05139, 3rd Dept 6-22-17

DISCIPLINARY HEARINGS (INMATES) (WITNESS TESTIMONY TAKEN OUTSIDE THE INMATE’S PRESENCE REQUIRED ANNULMENT AND EXPUNGEMENT)

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IN THE FACE OF AN ALLEGATION OF CONFLICT OF INTEREST, SUPREME COURT PROPERLY ORDERED DEFENSE COUNSEL TO PROVIDE STATEMENTS FROM THE JOINTLY REPRESENTED DEFENDANTS CONSENTING TO THE REPRESENTATION.

The Third Department determined Supreme Court properly required defense counsel, who represented several defendants, to submit statements demonstrating the clients’ consent to joint representation (to address potential conflicts of interest):

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With respect to defense counsel’s potential conflict of interest, we first note that defendants failed to preserve any objection that plaintiff lacked standing to raise the issue or failed to file her cross motion in a timely manner. Nor did Supreme Court err in ordering defense counsel to obtain the written statements. “[A] lawyer shall not represent a client if a reasonable lawyer would conclude that . . . the representation will involve the lawyer in representing differing interests” … . Notwithstanding such a conflict, a lawyer may still represent a client if “(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing” … . All Supreme Court’s order effectively does is assure compliance with this rule … . Considering the differing roles of each defendant, we conclude that Supreme Court prudently directed defense counsel to provide the client statements. Bynum v Camp Bisco, LLC, 2017 NY Slip Op 05143, 3rd Dept 6-22-17

ATTORNEYS (CONFLICT OF INTEREST, IN THE FACE OF AN ALLEGATION OF CONFLICT OF INTEREST, SUPREME COURT PROPERLY ASKED DEFENSE COUNSEL FOR STATEMENTS FROM THE JOINTLY REPRESENTED DEFENDANTS CONSENTING TO THE REPRESENTATION)/CONFLICT OF INTEREST (ATTORNEYS, IN THE FACE OF AN ALLEGATION OF CONFLICT OF INTEREST, SUPREME COURT PROPERLY ASKED DEFENSE COUNSEL FOR STATEMENTS FROM THE JOINTLY REPRESENTED DEFENDANTS CONSENTING TO THE REPRESENTATION)

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HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT.

The Third Department determined hearsay evidence constituted substantial evidence and supported a finding that petitioner abused a resident of a facility operated by the Office of People with Developmental Disabilities (OPWDD). A statement from an eyewitness was the challenged hearsay:

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… [I]t is well established that, in an administrative hearing, hearsay is admissible and may support a finding of substantial evidence … Further, hearsay evidence “may, under appropriate circumstances, form the sole basis of an agency’s determination, unless the hearsay evidence is seriously controverted” … . Here, the corroborated description of the incident by the eyewitness was only controverted by petitioner’s denial that he punched the victim. Petitioner’s acknowledgment that he engaged in horseplay with the victim that morning, combined with his statements on two other occasions that he did not recall whether he punched the victim, presented credibility questions for the Justice Center to resolve … . Consequently, the Justice Center could view the corroborated description by the eyewitness as not seriously controverted and “sufficiently reliable” so as to constitute substantial evidence … . Matter of Cauthen v New York State Justice Ctr. for the Protection of People with Special Needs, 2017 NY Slip Op 05147, 3rd Dept 6-22-17

ADMINISTRATIVE LAW (EVIDENCE, HEARSAY, HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT)/EVIDENCE (ADMINISTRATIVE LAW, SUBSTANTIAL EVIDENCE, HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT)/HEARSAY (ADMINISTRATIVE LAW, HEARSAY CONSTITUTED SUBSTANTIAL EVIDENCE AND SUPPORTED THE ABUSE REPORT)

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(1) SENTENCING COURT’S RELIANCE ON A CONFIDENTIAL DOCUMENT IN A PRE-SENTENCE REPORT, AND FAILURE TO INFORM THE DEFENDANT OF THE NATURE OF THE DOCUMENT, VIOLATED DUE PROCESS, (2) SENTENCING COURTS ARE NOT REQUIRED TO PUT THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS ON THE RECORD.

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the appellate division, determined (1) a sentencing judge need not put on the record the reasons for the denial of youthful offender status and (2) the sentencing court’s failure to inform defendant of the nature of a “confidential” document included in the pre-sentence report and relied upon by the sentencing judge violated defendant’s due process rights:

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In its current form, CPL 390.50 — which is entitled “Confidentiality of pre-sentence reports and memoranda” — declares that while PSIs are presumptively confidential, disclosure to the parties is required for sentencing purposes. * * *

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… [I]f a court decides that it is essential to keep confidential any portion of a document that might reveal its source, the court should, at the very least, disclose the nature of the document or redacted portion thereof — to the extent possible without intruding on any necessary confidentiality — and should set forth on the record the basis for such determination. Alternatively, where possible, the court may choose not to rely on the document, and clearly so state on the record. Here, the court failed to explain the nature of the document or the reason for its confidentiality. …

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As a result of the court’s failure to comply with its statutory obligation under CPL 390.50, defendant was deprived of the ability to respond to information that the court reviewed when imposing sentence, thus implicating his due process rights. Additionally, under the circumstances here, the appellate courts were unable to adequately review the sentencing court’s denial of disclosure. Accordingly, the order of the Appellate Division should be reversed and the case remitted to County Court for further proceedings in accordance with this opinion. People v Minemier, 2017 NY Slip Op 05120, CtApp 6-22-17

 

CRIMINAL LAW (PRE-SENTENCE REPORTS, SENTENCING COURT’S RELIANCE ON A CONFIDENTIAL DOCUMENT IN A PRE-SENTENCE REPORT, AND FAILURE TO INFORM THE DEFENDANT OF THE NATURE OF THE DOCUMENT, VIOLATED DUE PROCESS)/CRIMINAL LAW (YOUTHFUL OFFENDERS, SENTENCING COURTS ARE NOT REQUIRED TO PUT THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS ON THE RECORD)/PRE-SENTENCE REPORTS (PRE-SENTENCE REPORTS, SENTENCING COURT’S RELIANCE ON A CONFIDENTIAL DOCUMENT IN A PRE-SENTENCE REPORT, AND FAILURE TO INFORM THE DEFENDANT OF THE NATURE OF THE DOCUMENT, VIOLATED DUE PROCESS)/YOUTHFUL OFFENDERS (SENTENCING COURTS ARE NOT REQUIRED TO PUT THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS ON THE RECORD)

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PROPER PROCEDURE FOR DETERMINING YOUTHFUL OFFENDER STATUS NOT FOLLOWED, CASE REMITTED.

The Court of Appeals, reversing the appellate division, held Supreme Court did not follow the proper procedure for making an on-the-record determination of youthful offender eligibility and remitted the matter:

We agree with defendant’s contention that the trial court failed to make an on-the-record determination as to whether defendant was eligible for a youthful offender adjudication by first “considering the presence or absence of the factors set forth in CPL 720.10 (3)” … . People v Lofton, 2017 NY Slip Op 05119, CtApp 6-22-17

CRIMINAL LAW (YOUTHFUL OFFENDER, PROPER PROCEDURE FOR DETERMINING YOUTHFUL OFFENDER STATUS NOT FOLLOWED, CASE REMITTED)/YOUTHFUL OFFENDER (CRIMINAL LAW,  PROPER PROCEDURE FOR DETERMINING YOUTHFUL OFFENDER STATUS NOT FOLLOWED, CASE REMITTED)

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CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED.

The Second Department, in affirming the dismissal of the causes of action, explained when a resident can bring a private action to enforce a zoning ordinance and restrictive covenants in another’s deed:

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The Supreme Court also properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(3) to dismiss the plaintiff’s third cause of action, which was to enjoin alleged violations of the Code of the Town of Islip and restrictive covenants and to recover damages incidental to the alleged violations, as the plaintiff lacks standing to bring such a cause of action. Generally, to maintain a private action at common law to enjoin a zoning violation, a plaintiff must establish that he or she has standing to do so by demonstrating that special damages were sustained due to the defendant’s activities. To establish special damages, it is necessary to show that there is some depreciation in the value of the premises as real property arising from the forbidden use… . The plaintiff here failed to show that there was a depreciation of the character of the immediate neighborhood, or a depreciation in the value of her premises.

Furthermore, as stated previously, the plaintiff lacks standing to enforce restrictive covenants regarding the defendants’ property. The language in the deed from the original grantor indicates that the covenants were not imposed for the benefit of the owner of neighboring land. Therefore, the plaintiff may not enforce the covenants as a third-party beneficiary … .. Moreover, these covenants were not part of a common development scheme created for the benefit of all property owners within the subject development … . Wheeler v Del Duca, 2017 NY Slip Op 05116, 2nd Dept 6-21-17

 

ZONING (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)/REAL PROPERTY (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)/RESTRICTIVE COVENANTS (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)/DEEDS (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)

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PLAINTIFF FELL THROUGH OPEN TRAPDOOR IN LEASED PREMISES, DOOR WAS NOT DEFECTIVE, NO BASIS FOR LIABILITY OF BUILDING OWNER.

The Second Department determined the building owner’s motion for summary judgment in this slip and fall case should have been granted. The property was leased by a restaurant. Plaintiff fell through an open trapdoor. The trapdoor functioned properly and the fact that the trap door may have been installed without a permit did not raise a question of fact about the owner’s liability:

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The trapdoor itself was not defective or unsafe when closed, but allegedly became unsafe only upon being left open … . This is the case even assuming the truth of the plaintiffs’ allegation of a statutory violation based upon the installation of the trapdoor without a permit … . Accordingly, under the circumstances of this case, the owner demonstrated that there was no basis for imposing liability upon it … . Curran v 201 W. 87th St., L.P., 2017 NY Slip Op 05064, 2nd Dept 6-21-17

NEGLIGENCE (SLIP AND FALL, PLAINTIFF FELL THROUGH OPEN TRAPDOOR IN LEASED PREMISES, DOOR WAS NOT DEFECTIVE, NO BASIS FOR LIABILITY OF BUILDING OWNER)/SLIP AND FALL (OPEN TRAPDOOR,  PLAINTIFF FELL THROUGH OPEN TRAPDOOR IN LEASED PREMISES, DOOR WAS NOT DEFECTIVE, NO BASIS FOR LIABILITY OF BUILDING OWNER)/TRAPDOOR (PLAINTIFF FELL THROUGH OPEN TRAPDOOR IN LEASED PREMISES, DOOR WAS NOT DEFECTIVE, NO BASIS FOR LIABILITY OF BUILDING OWNER)

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ATTORNEY’S FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY.

The Second Department noted that attorney’s fees greater that the amount awarded by the court cannot be sought unless the court awarded fees in an amount less than was demanded. The court further noted that a letter of engagement in a matrimonial matter is mandatory and quantum meruit relief is not available:

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An attorney is not precluded from seeking fees charged pursuant to a retainer agreement that are greater than the amount granted to the client by the court in the action where the circumstances warrant, such as where the fees awarded by the court are less than the amount demanded … . Here, the plaintiff obtained awards of the amounts demanded in both the Family Court and Supreme Court matters and, accordingly, was not entitled to additional fees.

With respect to the appellate work provided, there was no written retainer agreement, which is required by 22 NYCRR 1400.3, governing such work. While the existing retainer agreements were for “post judgment” matter, which could be understood as matter arising subsequent to the entry of the judgment of divorce, those agreements explicitly did not encompass appellate work. Therefore, the plaintiff was not entitled to payment for fees incurred for appellate work … .

Further, while in a nonmatrimonial matter the unintentional failure to provide a letter of engagement does not preclude an attorney from recovering the fair and reasonable value of his or her services pursuant to the doctrine of quantum meruit …,this case involves postjudgment relief in a matrimonial matter, for which a written retainer agreement is required … . In any event, the plaintiff did not assert a cause of action sounding in quantum meruit in the complaint, and there is no proof in this record of the fair and reasonable value of the plaintiff’s services on the appeal. No transcript of the trial has been provided, thus precluding review of that factual issue … . Hyman & Gilbert v Withers, 2017 NY Slip Op 05072, 2nd Dept 6-21-17

 

FAMILY LAW (ATTORNEY’S FEES, ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/ATTORNEYS (FAMILY LAW, ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/RETAINER AGREEMENTS (FAMILY LAW, ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/LETTERS OF ENGAGEMENT (FAMILY LAW,  ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/QUANTUM MERUIT (FAMILY LAW, ATTORNEY’S FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)

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