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Exclusion of Alleged Gang Members from Courtroom During Testimony of Fearful Witness Was Proper

The Second Department determined Supreme Court properly closed the courtroom to alleged gang members during the testimony of a witness who indicated she was afraid of the gang members. The Second Department explained the relevant criteria:

In order to comport with the requirements of the Sixth Amendment, a courtroom closure must satisfy a four-prong standard set forth by the United States Supreme Court in Waller v Georgia: (1) “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,” (2) “the closure must be no broader than necessary to protect that interest,” (3) “the trial court must consider reasonable alternatives to closing the proceeding,” and (4) “it must make findings adequate to support the closure” (Waller v Georgia, 467 US at 48…).

Contrary to the defendant’s contentions, the trial court’s partial closure of the courtroom during the testimony of the eyewitness to the stabbing by excluding a certain group of men from the courtroom was not error. The witness, who had entered the courthouse from a side entrance and had remained secluded in a room not accessible to the public before entering the courtroom, wore a hat pulled down low over her face and a hoodie into the courtroom and immediately requested a recess upon entering the courtroom and then refused to testify. Upon hearing the witness express her fear of testifying because of certain men in the audience whom she identified as affiliated with the defendant and belonging to a particular gang, the court conducted a closed courtroom hearing to ascertain the nature of the witness’s fear and its effect upon her ability to testify in open court. The witness named one of the men and testified that she knew each of the men from her neighborhood, that they were members of a gang with which the defendant was affiliated, that the gang was a rival gang to the one in which her boyfriend was involved, and there had been prior violent altercations between the men in the courtroom and the witness’s boyfriend. The witness testified that she believed that the men would attempt to kill her if she testified against the defendant. Further, she testified that one of the men made eye contact with her and shook his head at her in the courtroom, which she interpreted as a threat not to testify. The witness was very frightened by the idea that the men, who already knew her name, would now know her face. The evidence of the witness’s extreme fear of testifying in open court before the men, her refusal to do so, the trial court’s observations that, based upon the witness’s demeanor, the fear was genuine, together with the fact that, although approximately 15 or so people were present during the stabbing of the decedent, the witness was the only person to come forward to the police, constitutes sufficient proof to establish an overriding interest that was likely to be prejudiced unless the courtroom was closed to the individuals of whom the witness was fearful … . In addition, the scope of the closure was no broader than was necessary. The exclusions were limited to the men identified by the witness as causing her fear, and their exclusion was limited to the duration of her testimony … . Furthermore, the trial court explored the possibility of limiting the courtroom exclusion to only the individual who had shaken his head at the witness, but the witness indicated that her fear would not be abated if the other men she recognized remained in the courtroom. Accordingly, this record shows that the trial court, in directing the exclusion at issue, determined that no lesser alternative would protect the interest at stake … . People v Dawson, 2015 NY Slip Op 05959, 2nd Dept 7-8-15

 

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Assault-Related Convictions Not Supported by the Weight of the Evidence/Prosecution Held to Erroneous Jury Instruction Which Was Not Challenged

The Second Department determined defendant’s convictions were not supported by the weight of the evidence and the prosecution should be held to an erroneous jury instruction which was not challenged. The defendant was acquitted of possession of a weapon and was not charged with acting in concert with others. Absent any evidence the defendant caused the injury to the victim his assault-related convictions could not stand. The jury was erroneously instructed that burglary requires proof the defendant unlawfully entered “and” (not “or”) remained in the victim’s dwelling. Because the erroneous instruction was not challenged, the People are held to it. The burglary conviction could not stand because the defendant was invited into the dwelling:

The evidence presented by the People was that the defendant alone caused serious physical injury to the victim by slashing him with an unidentified dangerous instrument. The jury was not charged that the defendant was acting-in-concert with the others. While the defendant was convicted of two counts of assault in the first degree and gang assault in the first degree, he was acquitted of criminal possession of a weapon in the fourth degree. In conducting our weight of the evidence review, we may consider the jury’s acquittal of the defendant on that count … . Given the victim’s testimony that, during the struggle, he heard the defendant say “no, don’t stab him, don’t stab him,” and that he did not see who slashed him, and considering that testimony along with the jury’s acquittal of the defendant of criminal possession of a weapon in the fourth degree, we find that the evidence, when properly weighed, did not establish that the defendant caused serious physical injury to the victim or that he did so by means of a dangerous instrument.

While a person is guilty of burglary in the first degree when he or she either knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein (see Penal Law § 140.30), here, the trial court, without objection, erroneously instructed the jury that, in order to find the defendant guilty of the two counts of this charge, the People were required to prove that the defendant “unlawfully entered and remained” in the victim’s dwelling (emphasis added). Since the People did not object to this erroneous charge, they were “bound to satisfy the heavier burden” … . Given that the evidence demonstrated that the defendant knocked on the victim’s door and announced his presence, and that the victim voluntarily invited the defendant into the apartment, the People failed to satisfy their burden as to these two counts. People v Samuels, 2015 NY Slip Op 05968, 2nd Dept 7-8-15

 

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Court Cannot Condition Future Visitation On Parent’s Participation in Counseling or Treatment

The Second Department noted that a court may not condition future visitation upon a parent’s participation in counseling or treatment because such a condition effectively removes control over visitation from the court:

A court hearing a pending proceeding or action involving issues of custody or visitation may properly order a mental health evaluation of a parent, if warranted, prior to making a custody or visitation determination (see Family Ct Act § 251[a]…). In addition, a court may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order … .

However, “a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights” … . The rationale underlying this rule is that “a court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded visitation rights,” a determination that is properly made by the court … . Lajqi v Lajqi, 2015 NY Slip Op 05916, 2nd Dept 7-8-15

 

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Sua Sponte Dismissal for Lack of Standing Reversed—Defendants Did Not Raise the Defense and Therefore Waived It—Lack of Standing is Not a Jurisdictional Defect

The Second Department determined Supreme Court should not have, sua sponte, dismissed the foreclosure action for an alleged lack of standing. The defendants did not raise the standing defense and, therefore, waived it. Standing is not a jurisdictional defense warranting sua sponte action by the court:

The Supreme Court improperly, sua sponte, directed the dismissal of the complaint on the ground that the plaintiff lacked standing. “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint … . Since the defendants … did not raise the defense of lack of standing in their answers and did not make pre-answer motions to dismiss the complaint on that ground, they waived the issue … . Moreover, a party’s lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court … . Onewest Bank, FSB v Prince, 2015 NY Slip Op 05922, 2nd Dept 7-8-15

 

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Late Submission of QDRO (Re: Spouse’s Pension) Did Not Affect Submitting Spouse’s Right to Arrears to the Date of Retirement—One Spouse’s Taking Out a Loan Against His/Her Pension Will Not Reduce the Other Spouse’s Share of the Pension

The Second Department, in an extensive, full-fledged opinion by Justice Dillon, resolving at least two issues of first impression, and noting differences among the Appellate Divisions, discussed: (1) the effect of a delay in submitting a Qualified Domestic Relations Order (QDRO) for a share of the other spouse’s pension (despite the delay the submitting spouse is entitled to arrears to the date of retirement); (2) the requirement that any QDRO be in accordance with a stipulation of settlement which has not merged (court can not expand or contract what was agreed to); (3) whether a loan taken against a pension should reduce the other spouse’s portion of the pension (no, it should not); and (4) whether a spouse’s portion of the other spouse’s pension should be reduced because of the election of a survivorship benefit in favor of a the other spouse’s new spouse (yes, it should).  In a nutshell, the court held that the late submission of a QDRO did not deprive the submitting spouse of the right to arrears, and a spouse’s share if the other spouse’s pension should not be reduced because of the other spouse’s taking out a loan against the pension:

A stipulation of settlement that is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation … . If an agreement is clear and unambiguous on its face, “the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence” … . “When the distribution of pension benefits between former spouses is accomplished through a QDRO obtained pursuant to a stipulation, such QDRO can convey only those rights to which the parties stipulated as a basis for the judgment'” … . If a QDRO is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the QDRO “to accurately reflect the provisions of the stipulation pertaining to the pension benefits” … . Thus, a court cannot issue a QDRO “encompassing rights not provided in the underlying stipulation” …, or one that is more expansive than the stipulation.  * * *

Despite the plaintiff’s delay in submitting a proposed QDRO to the Supreme Court, we reject the defendant’s contention that the plaintiff is not entitled to the arrears in pension benefits that accumulated between March 1, 2008, the date that the defendant retired from the FDNY, to March 26, 2013, the date that the Supreme Court signed the plaintiff’s proposed QDRO. An action to enforce a distributive award in a matrimonial action is governed by a six-year statute of limitations … . However, this Court … made clear that since a QDRO is derived from the bargain struck by the parties, there is no need to commence a separate, plenary action to formalize the agreement, and that “an application or motion for the issuance of a QDRO is not barred by the statute of limitations” … . * * *

… [W]e conclude that the plaintiff’s Majauskas share must be calculated with reference to the reduction in benefits resulting from the defendant’s provision of survivorship benefits to his second wife, we agree with the plaintiff that her share should be calculated without reference to the reduction in benefits resulting from the loan made to the defendant. Kraus v Kraus, 2015 NY Slip Op 05915, 2nd Dept 7-8-15

 

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Agreement to Assist Spouse in Obtaining a Visa Did Not Render the Marriage a Sham and the Separation Agreement Unenforceable/Agreement to Pay for One-Half of a Jointly Held Business Could Be Severed from Any Arguably Unenforceable Portions of the Separation Agreement/Even Where a Marriage is Annulled as Void or Voidable, Equitable Distribution Rules Apply

Reversing Supreme Court, the Second Department determined the provision in a separation agreement in which one spouse agreed to help the other obtain a visa did not render the marriage a sham and the separation agreement unenforceable. Therefore the provision of the separation agreement that one spouse pay the other one-half of the value of a jointly-owned business was enforceable. The Second Department noted that even if a portion of the agreement was not enforceable, the valid provisions could remain enforceable. The Second Department further noted that equitable distribution rules apply even when a marriage is annulled as void or voidable:

Although parties are usually free to chart their own contractual course, that is not the case in certain situations where public policy would be offended … . Further, as a general rule, illegal contracts are unenforceable … , and this includes marital agreements for visa sponsorship that unlawfully circumvent United States immigration laws … .

Here, the terms and conditions of the separation agreement ostensibly required the plaintiff to assist the defendant in obtaining a visa. Further, in an affidavit submitted in support of her motion, the plaintiff admitted that she stayed in the marriage longer than she wished so that the defendant could obtain an E-2 dependent visa. However, there is no proof that the marriage was a sham, or that any other tribunal or government agency had made such a determination.

More importantly, even if the Supreme Court was correct in determining that certain terms of the separation agreement are illegal and unenforceable, the terms directing the defendant to compensate the plaintiff for transferring her interest in the business to him would nevertheless be severable and enforceable … . Where an agreement consists of an unlawful objective in part and a lawful objective in part, the court may sever the illegal aspect and enforce the legal one, so long as the “illegal aspects are incidental to the legal aspects and are not the main objective of the agreement” … . Whether a contract is to be enforced in its entirety or is severable is generally a question of intent, “to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time they contracted” … . Moreover, “[c]ourts will be particularly ready to sever the illegal components and enforce the other components of a contract where the injured party is less culpable and the other party would otherwise be unjustly enriched by using his own misconduct as a shield against otherwise legitimate claims” … . Here, the separation agreement contained an express provision that the doctrine of severability shall apply should any particular term of the agreement be deemed invalid or unenforceable.

Contrary to the Supreme Court’s determination, we do not find that the main objective of the parties’ separation agreement was to compensate the plaintiff for remaining in the marriage and thereby helping the defendant obtain a visa (cf. Donnell v Stogel, 161 AD2d at 97). The separation agreement addressed various aspects of the parties’ marriage, including distribution of their marital assets. According to the plain language of the separation agreement, the $30,000 payment to the plaintiff constitutes compensation for the transfer of her 50% interest in the business that the parties co-owned at the time of the marriage. Notably, the parties agreed that, even if the visa sponsorship did not come to fruition, the defendant would still be obligated to pay the distribution of the value of the business.

It should be noted that, even if the marriage were proven to be a sham marriage, either party could have sought a divorce, a judgment declaring the nullity of a void marriage (see Domestic Relations Law § 140), or an annulment of a voidable marriage (see id.), all of which mandate the equitable distribution of assets acquired during the marriage (see Domestic Relations Law § 236[B][5][a], [c]…). Absent a judicial finding, after a hearing, that the money to be transferred to the plaintiff was payment for spousal sponsorship of a visa and nothing more, which would be against public policy and thus unenforceable in court, the terms of the separation agreement dealing with the distribution of assets acquired during the marriage are enforceable, separate and apart from any unenforceable terms. Thus, the terms of the separation agreement governing the transfer of the previously co-owned business in exchange for $30,000 are severable from any terms of the separation agreement which may be unenforceable … . Lanza v Carbone, 2015 NY Slip Op 05917, 2nd Dept 7-8-15

 

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Criteria for Negligent Care of a Child by a Nonparent Explained—Effect on Proof Requirements of Amnesia Suffered by the Injured Party Noted

In concluding summary judgment dismissing the complaint was proper, the Second Department explained the criteria for negligent care of a child by a nonparent and noted the effect of amnesia suffered by the injured party on the plaintiff’s proof requirements:

“A person, other than a parent, who undertakes to control, care for, or supervise an infant, is required to use reasonable care to protect the infant over whom he or she has assumed temporary custody or control. Such a person may be liable for any injury sustained by the infant which was proximately caused by his or her negligence. While a person caring for entrusted children is not cast in the role of an insurer, such an individual is obliged to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent failure to do so” … . Here, in support of her motion for summary judgment, the defendant Joanne Williams submitted evidence sufficient to establish, prima facie, that under the circumstances, she adequately supervised the infant plaintiff … .

In opposition, the plaintiffs failed to raise a triable issue of fact. Although the plaintiffs contend that the infant plaintiff suffered from amnesia as a result of the subject accident and, thus, they are not held to as high of a degree of proof …, the plaintiffs are not relieved of the obligation to provide some proof from which negligence can reasonably be inferred … . Alotta v Diaz, 2015 NY Slip Op 05899, 2nd Dept 7-8-15

 

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Circumstantial Evidence Raised Question of Fact About Whether Respondents Were Responsible for the Placement of an Object Which Fell and Injured Plaintiff

The Second Department determined summary judgment in favor of the respondents should not have been granted.  Plaintiffs had raised a question of fact by producing circumstantial evidence that the respondents, not New York City Transit Authority (NYCTA) employees, were responsible for the placement of a “shoe paddle” in a subway car which fell and injured plaintiff. The court explained the criteria for circumstantial evidence in this context:

“To establish a prima facie case of negligence based wholly on circumstantial evidence, [i]t is enough that [the plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred'” … . “The law does not require that plaintiff’s proof positively exclude every other possible cause of the accident but defendant’s negligence” … . “Rather, [the plaintiff’s] proof must render those other causes sufficiently remote’ or technical’ to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … . “A plaintiff need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant’s negligence than by some other agency” … .

Here, the respondents established their prima facie entitlement to judgment as a matter of law by proffering the testimony of two of their employees denying that they placed the shoe paddle in the subject door. In opposition, the plaintiffs raised a triable issue of fact by submitting the testimony from NYCTA employees, including the testimony of the cleaner of the subject train, that no NYCTA employee placed the shoe paddle in the door, and that the respondents were the only contractors present at the site during the relevant time period. The plaintiffs also submitted NYCTA records showing that as of 11:40 p.m., about three hours prior to the incident, all shoe paddles were in their holders and all doors were free and moving properly. Thus, the plaintiffs raised a triable issue of fact as to whether this circumstantial evidence gives rise to a rational inference that it was more likely or more reasonable that an employee of the respondents placed the shoe paddle in the subject door than an NYCTA employee … . Hernandez v Alstom Transp., Inc., 2015 NY Slip Op 05911, 2nd Dept 7-8-15

 

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Evidence Did Not Support Conviction for Attempted Possession of Burglar’s Tools— Conviction Was Against the Weight of the Evidence

The First Department determined the evidence was not sufficient to support a conviction for attempted possession of burglar’s tools (the conviction was against the weight of the evidence). The defendant had tools in his possession and stopped his bicycle to look inside two or three cars (in broad daylight).  However the defendant did not touch the tools. Therefore the element of the offense which requires circumstances indicating the tools were about to be used to commit a burglary was not supported:

“A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00.) “While the statutory formulation of attempt would seem to cover a broad range of conduct—anything tend[ing] to effect’ a crime—case law requires a closer nexus between defendant’s acts and the completed crime” … . The accused must engage in conduct that comes “dangerously close” to a completed crime before it can be combined with a criminal intent to constitute an attempted crime …

“A person is guilty of attempted possession of burglar’s tools when, with the intent to possess burglar’s tools, he tries to possess any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving larceny by a physical taking, and the surrounding circumstances evince an intent to use same in the offense of such character” … .

Although the element of intent may be satisfied by circumstantial evidence …, under the particular circumstances of this case the officer’s testimony that he observed defendant, in broad daylight, stopping his bicycle between two or three cars and looking through the driver’s side front window, is not, in and of itself, sufficient to support the inference that defendant intended to use the tools to steal any items from the cars. The officer admitted, inter alia, that during the 15 seconds that he observed defendant, he never saw him touch either a tool in the pouch or any of the cars and that the screwdriver set had to be assembled to be usable … . People v Pannizzo, 2015 NY Slip Op 05894, 1st Dept 7-7-15

 

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Warrantless Entry Into Defendant’s Home Justified by Exigent Circumstances—Juror’s Temporary Absence from the Trial (During Which the Trial Was Adjourned) and the Juror’s Inaccurate Statement He Had Discussed His Absence with the Judge Did Not Warrant a “Buford” Hearing or Disqualification

The First Department, in a full-fledged opinion by Justice Degrasse, affirmed defendant’s conviction, finding that the warrantless entry into defendant’s home to arrest him was justified by exigent circumstances and did not, therefore, constitute a “Payton” violation. The First Department further found that a juror’s temporary absence from the trial (during which the trial was adjourned), and the juror’s inaccurate statement he had discussed his absence with the judge, did not reveal juror bias and did not therefore warrant a “Buford” hearing or disqualification of the juror:

…[T]he motion court resolved the Payton issue, finding the detectives’ entry into defendant’s home justified by exigent circumstances.

Factors to be considered in determining whether exigent circumstances are present include “(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause … to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry” … .

This list of factors is illustrative and not exhaustive … . The court’s finding of exigent circumstances is supported by evidence in the record that defendant had been identified by name and from a photograph as the assailant who shot the two men at the bar only hours before. Accordingly, there was probable cause for defendant’s arrest. Moreover, the Nissan Armada was traced to defendant’s nearby address where there was reason to believe he could be found. There was reason to believe defendant was armed inasmuch as he was said to have left the bar with his weapon. The record also supports the court’s conclusion that the circumstances of the Police Department’s entry into the apartment were peaceful. * * *

Defendant next argues that the court erred in failing to conduct an inquiry pursuant to People v Buford (69 NY2d 290 [1987]) with respect to a juror’s absence on a trial day. On February 7, 2012, during the third week of trial, juror number nine failed to appear at court and could not be reached by court personnel. With the consent of counsel, the court adjourned the trial for two days in order to enable a court officer to check on the juror at his home. On the adjourned date, the court officer reported that she met with juror number nine who told her that he wasn’t feeling well and that he had told Justice Webber that he would return to court on February 9, 2012. It was undisputed that no such conversation between the court and the juror occurred. The court decided to continue with the trial and address the juror’s conduct at its conclusion. Defense counsel stated that he was concerned about the juror’s fitness to continue with the trial. The court declined to conduct the requested inquiry and the trial continued to verdict. Defendant argues that the court erred in denying his request for a Buford inquiry. We disagree.

To the extent applicable, CPL 270.35(1) provides that a court must discharge a sworn juror where “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 or has engaged in misconduct of a substantial nature, but not warranting the declaration of a mistrial . . .” Defendant does not argue on appeal that the juror was grossly unqualified or that his apparent misconduct was substantial. Defendant’s only claim of error stems from the court’s refusal to conduct a Buford inquiry. Viewed in light of the request made before the trial court, defendant’s argument is based on a misconstruction of Buford. As stated by the Court of Appeals, the purpose of Buford was the creation of “a framework by which trial courts could evaluate sworn jurors who, for some reason during the trial, may possess[] a state of mind which would prevent the rendering of an impartial verdict'” … . A juror with such a state of mind would be “grossly unqualified” … . * * *

… [I]t cannot be seriously argued in this case that juror number nine’s temporary absence from the trial and his inaccurate statement to the court officer indicated bias one way or the other. People v Paulino, 2015 NY Slip Op 05898, 1st Dept 7-7-15

 

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