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GRANDMOTHER DID NOT DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES JUSTIFYING AWARD OF CUSTODY OF GRANDCHILD TO HER, ANALYTICAL PRINCIPLES EXPLAINED.

The Third Department determined grandmother did not meet her burden of demonstrating extraordinary circumstances justifying the award of custody of the child to her. Family Court’s award of joint custody to mother and father was affirmed. Mother had relinquished custody to grandmother as an emergency measure (due to domestic abuse) but had continuously worked to regain custody. The court explained the relevant analytical principles:

 

It is well settled that, in the absence of extraordinary circumstances such as surrender, abandonment, persistent neglect, unfitness or an extended period of custody disruption, a parent has a claim of custody to his or her child superior to all others … . Here, since no finding of extraordinary circumstances had previously been made, the grandmother bore “the heavy burden of first establishing the existence of extraordinary circumstances to overcome the . . . parents’ superior right of custody” … . Only upon such a showing would Family Court proceed to address the issue of the child’s best interests … . Relevant here, “a prolonged separation of the . . . parent and the child for at least [24] continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of [a] grandparent” may constitute a disruption of custody sufficient to demonstrate extraordinary circumstances (Domestic Relations Law § 72 [2] [b]…). “An order placing a child in a nonparent’s custody upon a parent’s consent is neither a judicial finding nor an admission of extraordinary circumstances” … . Moreover, if the parent spends the period of separation trying to regain custody of his or her child, that period would not necessarily support a finding of extraordinary circumstances … . Matter of Elizabeth SS. v Gracealee SS., 2016 NY Slip Op 00068, 3rd Dept 1-7-16

 

FAMILY LAW (GRANDMOTHER DID NOT DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES JUSTIFYING CUSTODY OF GRANDCHILD)/CUSTODY (GRANDMOTHER DID NOT DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES JUSTIFYING CUSTODY OF GRANDCHILD)

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DENIAL OF PAROLE WAS IRRATIONAL; PETITIONER’S PRISON RECORD WAS EXCEPTIONAL UNTIL HIS MEDICATION FOR TREATMENT OF SCHIZOPHRENIA WAS STOPPED.

The Third Department affirmed Supreme Court’s annulment of the Board of Parole’s denial of petitioner’s request for release on parole. Petitioner’s record in prison was exceptional except for a four-month period during which his medication to treat schizophrenia was stopped. Once medication resumed, petitioner once again functioned well:

 

The Board is charged with considering whether “there is a reasonable probability that, if [an] inmate is released, he [or she] will live and remain at liberty without violating the law, and that his [or her] release is not incompatible with the welfare of society and will not so deprecate the seriousness of his [or her] crime as to undermine respect for the law” (Executive Law § 259-i [2] [c] [A]). “The decision to grant parole release is discretionary, but the Board is required to consider certain guidelines in making its determination” … . These guidelines include such factors as the inmate’s institutional record, his or her release plans, the seriousness of the offense, and his or her prior criminal record (see Executive Law § 259-i [2] [c] [A] [i], [iii], [vii], [viii]; 9 NYCRR 8002.3 [a] [1], [3], [7], [8]). In 2011, the law was amended to further require that the Board’s “review must include an instrument that measures rehabilitation and the likelihood of success on parole” (… see Executive Law §§ 259-c [4]; 259-i [2] [c]). The Board utilizes the COMPAS assessment to satisfy this requirement … . * * *

Considering this factual background, we agree with Supreme Court that the Board’s determination was irrational … . Further, it was irrational to such a degree that it cannot withstand judicial scrutiny, despite the very limited scope of our review (see Executive Law § 259-i [5]…). As petitioner argues, a fair review of this record compels the conclusion that the determination to remove him from all medication for his mental illness led to a psychotic breakdown that rendered him unable to comply with prison regulations during the period when the disciplinary infractions occurred. To withhold petitioner’s necessary medications was apparently an error of medical judgment. However, for the Board to then rely upon petitioner’s conduct during the psychotic crisis that was thus precipitated as a primary ground for denying his release is so inherently unfair and unreasonable that it meets the high standard of “irrationality bordering on impropriety” warranting our intervention … . To hold otherwise would, in effect, result in punishing petitioner with continued incarceration for the failure of prison officials to provide him with proper treatment for his mental illness — a result that we cannot sanction. Accordingly, we agree with Supreme Court that petitioner must be afforded a de novo hearing before the Board. Matter of Hawthorne v Stanford, 2016 NY Slip Op 00083, 3rd Dept 1-7-16

 

 

CRIMINAL LAW (DENIAL OF PAROLE BASED ON BEHAVIOR WHEN PETITIONER WAS DENIED MEDICATION FOR SCHIZOPHRENIA WAS IRRATIONAL)/PAROLE (DENIAL OF PAROLE BASED ON BEHAVIOR WHEN PETITIONER WAS DENIED MEDICATION FOR SCHIZOPHRENIA WAS IRRATIONAL)/MENTAL ILLNESS (DENIAL OF PAROLE BASED ON BEHAVIOR WHEN PETITIONER WAS DENIED MEDICATION FOR SCHIZOPHRENIA WAS IRRATIONAL)

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DEFENSE COUNSEL’S FAILURE TO MOVE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE LEARNED AT TRIAL CONSTITUTED INEFFECTIVE ASSISTANCE.

The First Department, over an extensive dissent, determined defense counsel was ineffective for failing to move to reopen the suppression hearing. Defendant was convicted of burglary. A bag of tools was the subject of a suppression motion. At the suppression hearing, the police officer testified the bag was open at defendant’s feet. The suppression court ruled the “burglar’s tools” were properly seized under the “plain view” exception to the warrant requirement. At trial, the building superintendent who stopped the defendant testified the bag was in defendant’s hand and closed when the police arrived. Based on that new information, defense counsel should have requested the reopening of the suppression hearing:

 

Under CPL 710.40(4), a suppression hearing may be reopened upon a showing that the defendant has discovered “additional pertinent facts” that “could not have [been] discovered with reasonable diligence before the determination of the motion.” Here, the additional facts were “pertinent” because the superintendent’s testimony, if credited, would have undermined the ruling that the tools were admissible because they were in plain view. This was not a minor or routine inconsistency; the superintendent’s version was completely at odds with a plain view theory. Any issue of whose recollection was most reliable should have been presented to the hearing court. People v Kindell, 2016 NY Slip Op 00027, 1st Dept 1-7-16

 

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)/EVIDENCE (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)/ATTORNEYS (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)/INEFFECTIVE ASSISTANCE (FAILURE TO REOPEN SUPPRESSION HEARING BASIED ON NEW EVIDENCE)/SUPPRESSION (INEFFECTIVE ASSISTANCE, FAILURE TO REOPEN SUPPRESSION HEARING BASED ON NEW EVIDENCE)

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COUNTY COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT’S APPLICATION FOR JUDICIAL DIVERSION TO A DRUG TREATMENT PROGRAM.

The Third Department, reversing County Court, determined defendant was eligible for judicial diversion to a drug treatment program. Defendant was stopped with four pounds of marijuana in his car. He demonstrated he was addicted to marijuana, that drug-dependence was a contributing factor re: his criminal behavior, and this was his first contact with the criminal justice system:

 

It is undisputed that defendant is an eligible defendant as defined in CPL 216.00 (1) and that his incarceration was not necessary to protect the public. Contrary to the determination of County Court, however, we also find that the uncontroverted evidence in the record amply supports the conclusions that defendant has a history of substance abuse and that such substance abuse and dependence were contributing factors to his criminal behavior. Specifically, among other things, defendant described that his progressively escalating marihuana use, which began socially at age 14, advanced to daily use over the ensuing years and culminated in defendant becoming a mule, transporting larger quantities of marihuana across state lines for other individuals in order to receive compensation in the form of marihuana. Defendant attested to resorting to this conduct when supporting his habit became too expensive, despite his gainful employment. We also note the expert testimony of a substance abuse counselor who opined that, based upon his history, defendant was an addict who was cannabis dependent.

Inasmuch as “[t]he statute does not require that a defendant’s . . . substance abuse or dependence be the exclusive or primary cause of the defendant’s criminal behavior” … , but instead only requires it be a contributing factor, we find no basis for County Court’s determination that the instant arrest — i.e., defendant’s only involvement with the criminal justice system — was not contributed to by defendant’s marihuana use. People v Cora, 2016 NY Slip Op 00066, 3rd Dept 1-7-15

 

 

 

 

 

 

CRIMINAL LAW (APPLICATION FOR JUDICIAL DIVERSION TO A DRUG TREATMENT PROGRAM SHOULD HAVE BEEN GRANTED)/JUDICIAL DIVERSION (APPLICATION FOR DIVERSION TO A DRUG TREATMENT PROGRAM SHOULD HAVE BEEN GRANTED)/DRUG TREATMENT PROGRAM (JUDICIAL DIVERSION APPLICATION SHOULD HAVE BEEN GRANTED)/MARIJUANA (APPLICATION FOR JUDICIAL DIVERSION TO A DRUG TREATMENT PROGRAM SHOULD HAVE BEEN GRANTED)

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COCAINE-POSSESSION OFFENSES CHARGED IN THE SUPERIOR COURT INFORMATION (SCI) WERE NOT LESSER INCLUDED OFFENSES OF THE THE COCAINE-POSSESSION OFFENSE CHARGED IN THE FELONY COMLAINTS; SCI IS JURISDICTIONALLY DEFECTIVE.

The Third Department determined the superior court informations (SCI’s) to which defendant pled guilty were jurisdictionally defective because neither SCI charged a lesser included offense of the offense charged in the original felony complaints. If it is possible, under any set of facts, to commit the greater offense but not the lesser, the lesser is not a lesser included offense. The offenses at issue here involved the possession of cocaine:

“A crime is a lesser included offense of a charge of a higher degree only when in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the very same conduct, committing the lesser offense” … . To be guilty of the offense charged in the SCI, a defendant must attempt to “knowingly and unlawfully possess cocaine” that weighs “[500] milligrams or more” (Penal Law §§ 110.00, 220.06 [5]). The first felony complaint charged defendant with criminal possession of a controlled substance in the third degree, which requires proof of knowing, unlawful possession of substances containing narcotic drugs that have “an aggregate weight of one-half ounce or more” (Penal Law § 220.16 [12]). Considered in the abstract, it is possible to possess or attempt to possess one-half ounce of a mixture of cocaine and some other substance in which the proportion of cocaine is less than 500 milligrams. Thus, it is possible to commit criminal possession of a controlled substance in the third degree without also committing attempted criminal possession of a controlled substance in the fifth degree, and the offense charged in the SCI is not a lesser included offense of the crime charged in the first felony complaint.

The second felony complaint charged defendant with criminal possession of a controlled substance in the fifth degree, which is committed when a person “knowingly and unlawfully possesses a controlled substance with intent to sell it” (Penal Law § 220.06 [1]). It is possible to possess cocaine with the intent to sell it while not concurrently possessing cocaine weighing more than 500 milligrams, or attempting to do so, as required to commit the crime charged in the SCI (see Penal Law §§ 110.00, 220.06 [5]). Thus, the crime charged in the SCI is not a lesser included offense of the crime charged in the second felony complaint … . People v Seals, 2016 NY Slip Op 00065, 3rd Dept 1-7-16

CRIMINAL LAW (SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE, OFFENSES WERE NOT LESSER INCLUDEDS)/SUPERIOR COURT INFORMATIONS (JURISDICTIONALLY DEFECTIVE, OFFENSES NOT LESSER INCLUDEDS)/COCAINE OFFENSES (SUPERIOR COURT INFORMATION JURISDICTIONALLY DEFECTIVE, OFFENSES NOT LESSER INCLUDEDS)

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PEOPLE SHOULD HAVE INSTRUCTED THE GRAND JURY ON THE AGENCY DEFENSE IN THIS CRIMINAL SALE OF MARIJUANA CASE, INDICTMENT PROPERLY DISMISSED.

The Third Department determined County Court properly reinspected the grand jury minutes pursuant to a second motion by defense counsel and properly dismissed the indictment because the People failed to instruct the grand jury on an applicable defense. Because the first motion to inspect argued the evidence before the grand jury was insufficient, the law of the case doctrine did not prohibit the second motion, which argued the proceedings were defective. The defendant was charged with criminal sale of marijuana.  However, the facts supported the theory the defendant was acting as an agent for the buyer:

 

… [W]hile there is no requirement that the grand jury “be charged with every potential defense suggested by the evidence” … , the People “must charge . . . those defenses that the evidence will reasonably support” … . As this Court recently reiterated, “[u]nder the agency doctrine, a person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer. Whether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question [to be resolved] . . . based upon [considerations of] factors such as the relationship between the buyer and the defendant, who initiated the transaction, whether the defendant had previously engaged in drug transfers and whether he or she profited from the sale” … . * * *

 

…. [T]he evidence before the grand jury reasonably supported the defense of agency; hence, the People’s failure to instruct the grand jury in this regard rendered that proceeding defective — particularly in view of the fact that the People were on notice of this potential defense prior to the commencement thereof. There is no question that it was the buyer who initiated the sale and, given the relationship between defendant and the buyer’s stepbrother, the evidence reasonably suggested that defendant was doing a favor for the stepsister of one of his friends. Additionally, none of the testimony offered before the grand jury revealed that defendant had a prior history of drug sales, and the evidence that defendant profited from the subject transaction was tenuous at best. Under these circumstances, County Court properly granted defendant’s motion to dismiss the indictment under CPL 210.35 (5) … . People v Gallo, 2016 NY Slip Op 00064, 3rd Dept 1-7-16

 

 

 

 

 

 

CRIMINAL LAW (GRAND JURY SHOULD HAVE BEEN INSTRUCTED ON AGENCY DEFENSE)/GRAND JURIES (PEOPLE SHOULD HAVE INSTRUCTED JURY ON AGENCY DEFENSE)/AGENCY DEFENSE (GRAND JURY SHOULD HAVE BEEN INSTRUCTED ON AGENCY DEFENSE)/MARIJUANA, CRIMINAL SALE (GRAND JURY SHOULD HAVE BEEN INSTRUCTED ON AGENCY DEFENSE)

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ALTHOUGH VACATUR OF A DEFAULT JUDGMENT WAS NOT AVAILABLE UNDER CPLR 5015, VACATUR WAS AVAILABLE UNDER CPLR 317.

The First Department, reversing Supreme Court, determined defendant’s (the LLC’s) motion to vacate a default judgment should have been granted. Although the LLC did not present a reasonable excuse for default, and therefore vacatur pursuant to CPLR 5015 was not available, the requirements for vacatur pursuant to CPLR 317 were met:

 

Although the LLC is not entitled to vacatur under CPLR 5015(a)(1), as it did not show a reasonable excuse for its default … , it is entitled to vacatur under CPLR 317, as it moved to vacate within a year after it learned of the default and just five months after entry of the default order, it showed that it did not personally receive the summons and complaint in time to defend it, and it presented a meritorious defense to the action (see CPLR 317…). The affidavit the LLC submitted in support of its motion was sufficient to show a meritorious defense … — namely, that it is an out-of-possession landlord that bears no liability for the injuries that allegedly occurred in its tenant’s bar due to the criminal acts of third parties … . Marte v 102-06 43 Ave., LLC, 2016 NY Slip Op 00061, 1st Dept 1-7-16

CIVIL PROCEDURE (VACATUR OF DEFAULT JUDGMENT UNDER CPLR 317 AVAILABLE BUT NOT UNDER CPLR 5015 )/DEFAULT JUDGMENTS, VACATUR (AVAILABLE UNDER CPLR 317 BUT NOT UNDER CPLR 5015)

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ANONYMOUS 911 CALL COUPLED WITH POLICE OFFICER’S OBSERVATIONS PROVIDED REASONABLE SUSPICION JUSTIFYING DETENTION OF THE DEFENDANT.

The Fourth Department determined an anonymous 911 call combined with the police officer’s observations provided the officer with reasonable suspicion defendant had a weapon, justifying detention of the defendant:

 

Although “a radioed tip may have almost no legal significance when it stands alone, . . . when considered in conjunction with other supportive facts, it may thus collectively, although not independently, support a reasonable suspicion justifying intrusive police action” … . Here … that “additional support can … be provided by factors rapidly developing or observed at the scene” … . The evidence at the hearing established that ” the report of the 911 caller was based on the contemporaneous observation of conduct that was not concealed’ ” … . Upon the officer’s arrival, defendant was positioned at a bladed angle toward the officer with his hand in his waistband or sweatshirt pocket, ” common sanctuar[ies] for weapons’ ” … . …

“A police officer directed to a location by a general radio call cannot reasonably be instructed to close his eyes to reality—neither the officer nor justice should be that blind. The officer was rightfully and dutifully on the scene and could not ignore possible indications of criminality, nor is there any logical reason for him to reject the natural mental connection between newly encountered facts and the substance of the radio message. More importantly, there certainly is no justification for holding that an officer in such a situation cannot take note of a significant occurrence indicating a possible threat to his life, merely because the call which directed him to the scene was in and of itself an insufficient predicate for intrusive action against a particular person” … . In accordance with Court of Appeals’ precedent, we conclude that “it would be unrealistic to require [the responding officer], who had been told that [a] gunm[a]n might be present, to assume the risk that the defendant’s conduct was in fact innocuous or innocent. Such an assumption would be at odds with his reasonably acquired belief that he was in danger and his constitutionally authorized action . . . It would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety” … . People v Williams, 2016 NY Slip Op 00789, 4th Dept 2-5-16

 

CRIMINAL LAW (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)/EVIDENCE (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)/SUPPRESSION (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)

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HERE DISCLAIMERS WERE UNNECESSARY BECAUSE THE ACTIVITY WHICH LED TO INJURY WAS NOT WITHIN THE OVERALL SCOPE OF THE POLICY-COVERAGE; HAD THE DISCLAIMERS BEEN BASED UPON AN EXCLUSION FROM COVERAGE, AS OPPOSED TO THE OVERALL SCOPE OF THE COVERAGE, THEY WOULD HAVE BEEN INVALID AS UNTIMELY.

The First Department determined the declarations page of defendant's insurance policy described what the policy covered, not exclusions from what otherwise would be covered. The distinction was crucial because the insurer was late in disclaiming coverage. If the disclaimers had been based upon an exclusion from coverage, the disclaimers would have been invalid as untimely. But because the disclaimers were based on the scope of the coverage of the policy, the disclaimers were unnecessary. Here it was deemed that injury from falling concrete during demolition of a chimney was outside the scope of the policy, which was limited to: (1) carpentry — interior … ; (2) dry wall or wallboard Installation” … ; (3) contractors — subcontracted work — in connection with construction, reconstruction, repair or erection of buildings  … ; and (4) contractors — subcontracted work — in connection with construction, reconstruction, repair or erection of buildings  … uninsured/underinsured … :

“Disclaimer pursuant to section 3420(d) [now § 3420(d)(2)] is unnecessary when a claim falls outside the scope of the policy's coverage portion. Under those circumstances, the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed. By contrast, disclaimer pursuant to section 3420(d) is necessary when denial of coverage is based on a policy exclusion without which the claim would be covered” … .

… [T]he subject policy's classification limitations of coverage merely define the activities that were included within the scope of coverage “in the first instance” … and do not constitute exclusions from coverage that would otherwise exist. Stated otherwise, the relevant policy language of … the declarations page states the activities that are covered. If the loss in question did not arise from activities within the classifications set forth on the declarations page, then coverage is lacking “by reason of lack of inclusion” … , and “the policy as written could not have covered the liability in question under any circumstances” … . Black Bull Contr., LLC v Indian Harbor Ins. Co., 2016 NY Slip Op 00002, 1st Dept 1-5-16

INSURANCE LAW (NO DISCLAIMER NECESSARY WHERE INJURY CAUSED BY ACTIVITY OUTSIDE THE SCOPE OF THE POLICY)/DISCLAIMERS (INSURANCE LAW, NO DISCLAIMER NECESSARY WHERE INJURY CAUSED BY ACTIVITY OUTSIDE THE SCOPE OF THE POLICY)/EXCLUSIONS FROM COVERAGE (INSURANCE LAW, IF AN INSURER SEEKS TO ENFORCE A POLICY EXCLUSION, TIMELY DISCLAIMER REQUIRED)/DISCLAIMERS (IF AN INSURER SEEKS TO ENFORCE A POLICY EXCLUSION, TIMELY DISCLAIMER IS REQUIRED)

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JUDGE FAILED TO MAKE IT CLEAR THAT ACQUITTAL ON THE TOP COUNT (ATTEMPTED MURDER) BASED ON SELF-DEFENSE REQUIRED ACQUITTAL ON ANY LESSER COUNT STEMMING FROM THE SAME CONDUCT; NEW TRIAL ORDERED.

The First Department reversed defendant's conviction and ordered a new trial because the trial judge did not make it clear that if the jury found defendant acted in self-defense (justification defense) with respect to the top count (attempted murder) it could not consider a related lesser count:

The jury acquitted defendant of attempted murder in the second degree and assault in the first degree, but found him guilty of attempted first-degree assault, arising out of the stabbing of his cousin. Justification was a central issue at trial, and, because of the defect in the court's charge, it is impossible to discern whether acquittal of the top count was based on the jury's finding of justification in a manner that would mandate acquittal on the lesser count.

Considered as a whole, the court did not adequately convey the principle that, if the jury found defendant not guilty of the top count of attempted murder in the second degree on the basis of justification, it should not consider any lesser counts to the extent based on the same conduct… . People v Colasuonno, 2016 NY Slip Op 00021, 1st Dept 1-5-16

CRIMINAL LAW (JUDGE FAILED TO MAKE IT CLEAR THAT ACQUITTAL ON TOP COUNT BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON ANY LESSER COUNT STEMMING FROM THE SAME CONDUCT, NEW TRIAL ORDERED)/JURY INSTRUCTIONS (JUDGE FAILED TO MAKE IT CLEAR THAT ACQUITTAL ON TOP COUNT BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON ANY LESSER COUNT STEMMING FROM THE SAME CONDUCT, NEW TRIAL ORDERED)/JUSTIFICATION DEFENSE (JUDGE FAILED TO MAKE IT CLEAR THAT ACQUITTAL ON TOP COUNT BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON ANY LESSER COUNT STEMMING FROM THE SAME CONDUCT, NEW TRIAL ORDERED)

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