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MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING.

The Third Department determined Family Court should not have, sua sponte, dismissed mother’s pro se petition for custody modification without a hearing:

“‘In any modification proceeding, the threshold issue is whether there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the child[]'” … . While an evidentiary hearing is not required in every case, a hearing is generally “necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child[]’s best interests” … . In determining whether a pro se petitioner made a sufficient evidentiary showing to warrant a hearing, we construe the pleadings liberally and afford the petitioner the benefit of every favorable inference … .

In her pro se petition, the mother alleged that she had moved into an apartment with the child’s maternal grandmother, had enrolled as a full-time student and was attending “[a]lcohol counseling.” Inasmuch as the mother’s alcohol abuse was a primary factor in Family Court’s January 2015 custody determination, the mother’s factual allegations of improvement, construed liberally and if established after a hearing, could afford a basis for awarding the mother increased parenting time, unsupervised parenting time and/or access to the child’s medical and educational records. Accordingly, we find that Family Court erred in dismissing the mother’s petition without a hearing … . Matter of Miller v Bush, 2016 NY Slip Op 05413, 3rd Dept 7-7-16

 

FAMILY LAW (MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING)/CUSTODY (MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING)/MODIFICATION OF CUSTODY (MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING)

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SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED.

The Third Department determined the severe abuse petition against mother (respondent) should not have been dismissed by Family Court. The abuse was apparently inflicted by mother’s boyfriend in her absence and resulted in the child’s death:

Respondent demonstrated reckless judgment and disregard for the safety and well-being of the older child by allowing the boyfriend — who she had dated for only a very brief period of time and knew went out at night to procure illegal drugs — to care for her children and, significantly, by permitting him to continue to care for her children and inflict further abuse after the older child had sustained serious and an abnormal degree of bruising, which she unreasonably attributed to accidental causes and the explanations provided by the boyfriend … . To that end, respondent was aware, or should have been aware, of the older child’s numerous injuries indicative of extensive, repeated and accumulating abuse.

Equally troubling is respondent’s failure to seek professional medical treatment for the older child notwithstanding her knowledge of numerous visible injuries. Matter of Mason F. (Katlin G.–Louis F.), 2016 NY Slip Op 05408, 3rd Dept 7-7-16

 

FAMILY LAW (SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED)/CHILD ABUSE (SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED)/SEVERE ABUSE (SEVERE ABUSE PETITION AGAINST MOTHER SHOULD NOT HAVE BEEN DISMISSED)

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NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF ARRESTING OFFICER REVERSED.

The Third Department reversed, in the interest of justice, defendant’s conviction for assault of a police officer (Smith) because the officer did not have reasonable suspicion defendant had committed a crime at the time defendant was detained. Defendant was involved in an argument with someone when the police approached and did not answer the officer’s questions:

Viewing the evidence in the light most favorable to the People … , we find no valid line of reasoning and permissible inferences from which a rational jury could have concluded that Smith possessed the requisite reasonable suspicion of criminality necessary to forcibly detain defendant. As defendant’s subsequent conduct in assaulting Smith “cannot validate an encounter that was not justified at its inception” … , the evidence was legally insufficient to establish that Smith was injured while undertaking a lawful duty, and defendant’s conviction must be reversed … . People v Tucker, 2016 NY Slip Op 05400, 3rd Dept 7-7-16

CRIMINAL LAW (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/REASONABLE SUSPICION (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/STREET STOPS  (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/SUPRESSION (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSUALT OF POLICE OFFICER REVERSED)/POLICE OFFICERS (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSUALT OF A POLICE OFFICER REVERSED)/RESISTING ARREST (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)

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EVIDENCE COLLECTED AFTER REQUEST FOR COUNSEL SHOULD HAVE BEEN SUPPRESSED, NEW TRIAL ORDERED.

The Third Department determined statements made by and evidence collected from defendant after his request for counsel should have been suppressed in this vehicular homicide case. A new trial was ordered;

The People further conceded at oral argument that defendant invoked his constitutional and limited statutory right to counsel in response to those warnings and that, under the circumstances of this case, valid grounds existed to suppress his post-invocation statements and evidence related to the DRE [drug recognition evaluation], second breathalyzer and blood tests … . The erroneous admission of this evidence is reviewed under the harmless error doctrine, and such an error is considered harmless “when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” … . The admissible evidence at trial established that defendant took twice his prescribed dosage of Clonazepam the morning of the accident and that he failed field sobriety tests administered at the scene. Nevertheless, inasmuch as defendant’s inadmissible statements, the recording of the DRE test and the evidence of the inadmissible test results themselves may well have contributed to the conviction, it cannot be said that the erroneous admission of that evidence was harmless … . People v Green, 2016 NY Slip Op 05399, 3rd Dept 7-7-16

 

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GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY.

The Third Department, in a full-fledged opinion by Justice Garry, clarified the application of General Construction Law 25-a to the six-month speedy trial time limit for felonies:

At issue here is the deadline by which the People must declare readiness when a defendant is charged with a felony. It has also been held that for General Construction Law § 25-a to apply in any factual circumstance, “there must be an initially ascertainable certain day from which reckoning may be made” … . CPL 30.30 (1) (a) specifies such an ascertainable day — that is, the commencement of a criminal action — from which the six-month period within which the People are required to declare readiness for trial is to be computed. Thus, we find that when the last day of the six-month period specified by CPL 30.30 (1) (a) falls upon a Saturday, Sunday or legal holiday, the expiration of the period in which the People must declare readiness is extended to the next succeeding business day pursuant to General Construction Law § 25-a. Here, the People’s second declaration of readiness was made on the next succeeding business day following the legal holiday upon which the six-month period expired; it was therefore timely and effective, and dismissal of the indictment was not required. People v Mandela, 2016 NY Slip Op 05401, 3rd Dept 7-7-16

CRIMINAL LAW (GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)/SPEEDY TRIAL (GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)/GENERAL CONSTRUCTION LAW (SPEEDY TRIAL DEADLINE, GENERAL CONSTRUCTION LAW EXTENDS THE SIX-MONTH SPEEDY TRIAL DEADLINE IF THE LAST DAY FALLS ON A SATURDAY, SUNDAY OR A HOLIDAY)

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ALLEGED ORAL MODIFICATION OF A CONTRACT WHICH REQUIRED WRITTEN NOTICE UNENFORCEABLE.

The Third Department, reversing Supreme Court, determined the alleged oral modification of a contract which required written notice was not enforceable:

… [I]f an oral modification has not “been acted upon to completion” in a manner that “demonstrate[s], objectively, the nature and extent of the modification” … , it will be enforceable only upon a showing “of either partial performance . . ., which must be unequivocally referable to the oral modification, or equitable estoppel, based upon conduct which is not otherwise compatible with the agreement as written” … . * * *

The performance of the parties under [the] purported [oral] arrangement, in other words, was identical to that required under a renewed sales agreement. It cannot, as a result, be said that “there was [any] performance on [plaintiff’s] part that was unequivocally referable to the existence of an oral contract” … . Likewise, inasmuch as the behavior of the parties was “compatible with the agreement as written,” and given the absence of written notice of nonrenewal, there is no basis for estopping defendant from relying upon the agreement as written … . J. Triple S., Inc. v Aero Star Petroleum, Inc., 2016 NY Slip Op 05414, 3rd Dept 7-7-16

 

CONTRACT LAW (ALLEGED ORAL MODIFICATION OF A CONTRACT WHICH REQUIRED WRITTEN NOTICE UNENFORCEABLE)/MODIFICATION (CONTRACT LAW,  ALLEGED ORAL MODIFICATION OF A CONTRACT WHICH REQUIRED WRITTEN NOTICE UNENFORCEABLE)/ORAL MODIFICATION (CONTRACT LAW,  ALLEGED ORAL MODIFICATION OF A CONTRACT WHICH REQUIRED WRITTEN NOTICE UNENFORCEABLE)

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FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED.

The Third Department determined mother presented sufficient evidence of a change in circumstances to survive father’s motion to dismiss her petition for a custody modification:

Viewed as a whole and accepted as true for this purpose, despite the existence of some apparent contrary evidence, the mother’s proof regarding physical discipline in the father’s household, together with the alleged improvement and stabilization of the mother’s living situation, constituted a change in circumstances sufficient to overcome a motion to dismiss … . The mother thus satisfied her initial burden, and a further and more complete inquiry as to whether a modification of custody is in the best interests of the children is warranted … . Accordingly, we find that Family Court erred in granting the father’s motion to dismiss on this ground.  Matter of Mary BB. v George CC., 2016 NY Slip Op 05406, 3rd Dept 7-7-16

FAMILY LAW (FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED)/CUSTODY (FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED)/MODIFICATION OF CUSTODY (FATHER’S MOTION TO DISMISS MOTHER’S PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN GRANTED, FURTHER INQUIRY REQUIRED)

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INSURER FAILED TO GIVE ADEQUATE NOTICE OF A CHANGE IN THE COVERAGE OF THE UNDERLYING AUTO LIABILITY POLICY REQUIRED BY ITS UMBRELLA POLICY, UMBRELLA POLICY REFORMED TO RESTORE THE RESULTING GAP IN COVERAGE.

The Second Department, in a full-fledged opinion by Justice Cohen, determined defendant insurer failed to notify plaintiff of an elimination of coverage as required by Insurance Law 3425. The insurance contract was reformed to include the eliminated coverage. Plaintiff had a $1,000,000 umbrella auto insurance policy with the defendant insurer (Allstate). When plaintiff purchased the umbrella policy it required $100,000/$300,000 coverage in the underlying policy. Although the limit of the umbrella policy did not change, the requirements for the underlying policy were increased to $250,000/$500,000. After an accident, Allstate paid the excess over $250,000, but refused to pay the difference between the $100,000 actual coverage of the underlying policy and the $250,000 required coverage:

Insurance Law § 3425 imposes restrictions on a liability insurer’s right to cancel, refuse to renew, or condition renewal of a policy, and requires the insurer to provide notice to the policyholder before any cancellation, nonrenewal, or conditional renewal occurs. At issue on this appeal is Insurance Law § 3425(d)(1), which requires an insurer to notify a policyholder, at least 45 days before the end of the coverage period, of its intention to condition renewal “upon change of limits or elimination of any coverages,” and to provide a specific reason for so conditioning renewal. … [W]e find that the notice requirement of Insurance Law § 3425(d)(1) applies where, as here, an insurer issues an umbrella policy providing the policyholder with additional coverage above the limits of his or her automobile coverage, and then increases the amount of underlying automobile liability insurance the policyholder must maintain before the additional coverage provided by the umbrella policy becomes available. We further find that an insurer’s failure to comply with Insurance Law § 3425(d)(1) provides a basis for reformation of the subject policy. Gotkin v Allstate Ins. Co., 2016 NY Slip Op 05359, 2nd Dept 7-6-16

INSURANCE LAW (INSURER FAILED TO GIVE ADEQUATE NOTICE OF A CHANGE IN THE COVERAGE OF THE UNDERLYING AUTO LIABILITY POLICY REQUIRED BY ITS UMBRELLA POLICY, UMBRELLA POLICY REFORMED TO RESTORE THE RESULTING GAP IN COVERAGE)/CONTRACT LAW (INSURANCE POLICY, INSURER FAILED TO GIVE ADEQUATE NOTICE OF A CHANGE IN THE COVERAGE OF THE UNDERLYING AUTO LIABILITY POLICY REQUIRED BY ITS UMBRELLA POLICY, UMBRELLA POLICY REFORMED TO RESTORE THE RESULTING GAP IN COVERAGE)/REFORMATION (INSURANCE POLICY, INSURER FAILED TO GIVE ADEQUATE NOTICE OF A CHANGE IN THE COVERAGE OF THE UNDERLYING AUTO LIABILITY POLICY REQUIRED BY ITS UMBRELLA POLICY, UMBRELLA POLICY REFORMED TO RESTORE THE RESULTING GAP IN COVERAGE)

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FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS.

The Second Department, reversing Family Court, determined the petition for an order making specific findings which would lead to special immigrant resident status (SIJS) should have been granted:

Pursuant to 8 USC § 1101(a)(27)(J) … and 8 CFR 204.11, a special immigrant is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not possible due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the juvenile’s best interest to be returned to his or her previous country of nationality or country of last habitual residence … .

Based upon our independent factual review, the record establishes that the child’s father is deceased, and therefore, reunification of the child with the father is not possible … .

Further, the Family Court erred with respect to its recital of the best interest element. The law does not require a finding that “it is in [the child’s] best interest to remain in the United States,” but that “it would not be in the [child’s] best interest to be returned to [his or her] previous country of nationality or country of last habitual residence” (8 USC § 1101[a][27][J][ii]). Here, the record reflects that it would not be in the child’s best interest to be returned to El Salvador, her previous country of nationality and last habitual residence. Matter of Carlos A.M. v Maria T.M., 2016 NY Slip Op 05374, 2nd Dept 7-6-16

 

FAMILY LAW (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)/IMMIGRATION LAW (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)/SPECIAL IMMIGRANT RESIDENT STATUS (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)

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SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS.

The Second Department determined criminal contempt charges rendered the indictment multiplicitous. The charge offense was a continuing offense and there was no interruption in the course of conduct:

An indictment is multiplicitous ” when a single offense is charged in more than one count'” … . In addition, “[a]n indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . Here, counts 4, 5, 6, 7, 8, 9, 10, and 11 of the indictment are multiplicitous of count three since those counts allege a continuous offense consisting of the defendant’s repeated telephone calls, over a nine-month period, with the intent to harass, annoy, threaten, or alarm the victim (see Penal Law § 215.51[b][iv]). The dates used by the prosecution to divide the counts did not establish that there was an interruption in the course of conduct … . People v Young, 2016 NY Slip Op 05395, 2nd Dept 7-6-16

CRIMINAL LAW (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/EVIDENCE (CRIMINAL LAW, SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/MULTIPLICITOUS INDICTMENT (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/INDICTMENTS (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/CONTINUING OFFENSE (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/CONTEMPT (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)

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