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Juvenile Delinquency Adjudication Appropriate to Ensure Residential Supervision

The First Department determined Family Court had properly adjudicated the appellant a juvenile delinquent, despite the relatively minor offense, because the appellant was in need of residential supervision:

The court properly exercised its discretion in adjudicating appellant a juvenile delinquent. Although the underlying offense was not serious, appellant was in need of a residential, nonsecure placement under the Close to Home Initiative program. The court properly declined to adjudicate appellant a person in need of supervision … , particularly since appellant had already demonstrated, following a prior proceeding brought by her mother, that such a disposition would not control appellant’s behavior. Accordingly, a juvenile delinquency adjudication was necessary to ensure appellant’s compliance with residential treatment. “[T]he irony is presented that while the court may direct the PINS youth not to abscond, the statutory authority constraining the court essentially precludes an effective remedy should the youth abscond” … . Matter of Amari D, 2014 NY Slip Op 03452, 1st Dept 5-13-14

 

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Facts Did Not Support Family Court’s Dismissal of a Petition to Terminate Parental Rights of Both Parents—Permanent Neglect Finding Was Warranted by the Facts

The First Department reversed Family Court, based on the appellate division’s own findings of fact, and found that neither parent had made realistic plans for the child’s future, constituting clear and convincing evidence of permanent neglect:

There is no dispute that the agency has met the threshold requirement in a permanent neglect proceeding of showing it discharged its statutory obligation to exert diligent efforts to encourage and strengthen the parental relationships (see Social Services Law § 384-b[7][a]…). However, contrary to the findings by Family Court, there is clear and convincing evidence, the standard of proof required …, that despite the agency’s diligence, neither parent has, “for a period of either at least one year or fifteen out of the most recent twenty-two months following the date [the] child came into the care of an authorized agency,” shown sufficient planning for the child’s future, as described in the Social Services Law, to warrant continuing parental rights (see Social Services Law § 384-b[7][a]…).

Planning for the future of the child under the Social Services Law requires that the parent take “necessary [steps] to provide an adequate, stable home and parental care for the child within a period of time which is reasonable”; at the very least, the parent must take steps to “correct the conditions” that resulted in the initial removal of the child from the home … . Matter of Selvin Adoph F v Thelma Lynn F, 2014 NY Slip Op 03432, 1st Dept 5-13-14

 

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Family Court Should Not Have Denied Father’s Request for Son’s Mental Health Records Without an In Camera Review

The First Department determined Family Court should not have denied father’s request for his son’s mental health records without first conducting and in camera review of the records and applying a balancing test required by Family Court Act section 1038 (d). There was no evidence of the alleged abuse except the child’s testimony, so the child’s credibility was the central issue:

Respondent father moved to subpoena the eldest child’s (the child) mental health treatment records. The Family Court, without conducting an in camera review of the requested records, denied the motion. Pursuant to Family Court Act (FCA) § 1038(d), the court must conduct a balancing test … . The statute requires that the court weigh “the need of the [moving] party for the discovery to assist in the preparation of the case” against “any potential harm to the child [arising] from the discovery.” Here, the Family Court should have reviewed the child’s mental health records in camera to determine if the records are relevant to the central issue of the child’s credibility before making its disclosure ruling.

The record contains no physical evidence of the alleged abuse and the case against respondent relies almost entirely on the credibility of the child, placing a great amount of weight on the child’s testimony… . Matter of Dean T Jr (Dean T Sr), 2014 NY Slip Op 03430, 1st Dept 5-13-14

 

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Aggravated Harassment Statute Unconstitutionally Vague and Overbroad/Criminal Impersonation Statute Encompasses Injury to Reputation

In a full-fledged opinion by Judge Abdus-Salaam, over a partial dissent, the Court of Appeals found the aggravated harassment statute unconstitutionally vague and overbroad, and determined the “injury” contemplated by the criminal impersonation (second degree) statute encompassed injury to reputation.  The defendant's father is a “Dead Sea Scrolls” scholar.  The defendant engaged in an email campaign in which he created emails which purported to be from other “Dead Sea Scrolls” scholars and which had the effect of promoting his father's positions.  The defendant was convicted of criminal impersonation, aggravated harassment, identity theft, forgery and unauthorized use of a computer.  Ultimately the Court of Appeals affirmed convictions for nine counts of criminal impersonation and the forgery counts.  With respect to harassment and criminal impersonation, the court wrote:

A person is guilty [of criminal impersonation in the second degree] when he or she “impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another” (Penal Law § 190.25).  * * *

…[W]e conclude that injury to reputation is within the “injury” contemplated by Penal Law § 190.25. Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property,[FN2] and we believe the Legislature intended that the scope of the statute be broad enough [*7]to capture acts intended to cause injury to reputation.

Accordingly, a person may be found guilty of criminal impersonation in the second degree if he or she impersonates another with the intent to cause a tangible, pecuniary injury to another, or the intent to interfere with governmental operations … . In addition, a person who impersonates someone with the intent to harm the reputation of another may be found guilty of this crime.

Penal Law § 240.30(1)(a) provides that “[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she . . . communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm.” We agree with defendant that this statute is unconstitutionally vague and overbroad … .

In People v Dietze (75 NY2d 47 [1989]), this Court struck down a similar harassment statute, former Penal Law § 240.25, which prohibited the use of abusive or obscene language with the intent to harass, annoy or alarm another person. We determined that the statute [*8]was unconstitutional under both the State and Federal Constitutions, noting that “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence” (id. at 52).

The reasoning applied in Dietze applies equally to our analysis of Penal Law § 240.30(1)(a). The statute criminalizes, in broad strokes, any communication that has the intent to annoy. Like the harassment statute at issue in Dietze, “no fair reading” of this statute's “unqualified terms supports or even suggests the constitutionally necessary limitations on its scope” … . People v Golb, 2014 NY Slip Op 03426, CtApp 5-13-14

 

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Question of Fact Whether Elevator Company Had Constructive Notice of “Misleveling Condition”/Question of Fact About Applicability of Res Ipsa Loquitur Doctrine

The First Department determined questions of fact had been raised about whether an elevator company, which exclusively maintained and repaired the elevator, had constructive notice of the “misleveling condition.”  In addition there was a question of fact about the applicability of the res ipsa loquitur doctrine:

An elevator company that agrees to maintain an elevator may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found … .

Plaintiffs raised a triable issue of fact as to whether defendants had constructive notice of the misleveling condition or with reasonable care could have discovered and corrected the condition, by submitting the affidavit of their expert, who reviewed defendants’ repair tickets and concluded that they revealed conditions related to the elevator’s leveling function. * * *

Issues of fact exist as to whether the doctrine of res ipsa loquitur applies here. The expert testimony conflicts as to whether the misleveling of the elevator would not ordinarily occur in the absence of negligence. It is, however, undisputed that defendants were exclusively responsible for maintenance and repair of the elevator, and the record is devoid of any evidence that plaintiff contributed to its misleveling… . McLaughlin v Thyssen Dover El Co, 2014 NY Slip Op 03440, 1st Dept 5-13-14

 

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Releases Effectively Prohibiting Decedent’s Exercise of a Power of Appointment In Favor of Decedent’s Wife Were Not Procured by Constructive Fraud

The First Department reversed Surrogate’s Court and determined that releases restricting decedent’s power of appointment were not procured by constructive fraud (as a matter of law) and were enforceable.  The releases allowed decedent to exercise powers of appointment re: a trust only in favor of a descendant. Decedent’s wife was the beneficiary of a codicil, executed by the decedent after the execution of the releases, which purported to award her 25% of the trust plus the income from 75% of the trust for life. In finding the wife had not raised a question of fact about whether the releases were procured by constructive fraud, the court wrote:

The principles underlying the concept of constructive fraud are of long-standing duration:

“It may be stated as universally true that fraud vitiates all contracts, but as a general thing it is not presumed but must be proved by the party seeking to relieve himself from an obligation on that ground. Whenever, however, the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, there the burden is shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood. This doctrine is wellsettled.” …

“To avoid a release on the ground of fraud, a party must allege every material element of that cause of action with specific and detailed evidence in the record sufficient to establish a prima facie case … . “In the absence of a fiduciary relationship between the parties to the release, the party seeking to avoid the release bears the burden of proving such fraud or other vitiating circumstances”… . Moreover, a release should “not be treated lightly” and “should never be converted into a starting point for renewed litigation” except in cases of “grave injustice” and then, only under “the traditional bases of setting aside written agreements” … . * * *

It is well established that a “party who signs a document without any valid excuse for having failed to read it is conclusively bound by its terms” … . The record is devoid of any excuse, let alone a valid excuse, for failing to read the release prior to signing it … . * * * “[T]o hold a release forever hostage to legal afterthoughts basically vitiates the nature of the release” … .

 Matter of Aoki v Aoki, 2014 NY Slip Op 03433, 1st Dept 5-13-14

 

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Pretrial Motion to Dismiss the Accusatory Instrument, Arguing the Facts Alleged Did Not Constitute the Crime Charged, Preserved the Legal-Sufficiency Issue for Appeal, Despite the Absence of a Motion for a Trial Order of Dismissal on the Same Ground

The Court of Appeals, in a full-fledged opinion by Judge Smith, with three judges dissenting, determined defendant's pretrial motion to dismiss the charges, arguing that the facts alleged by the People did not constitute the crime charged, preserved the “legal sufficiency” issue for appeal, despite the absence of a motion for a trial order of dismissal on the same ground. The defendant was charged with trespass and resisting arrest. The defendant had permission to be on the property.  County court had dismissed the trespass conviction, but upheld the resisting arrest conviction.  The Court of Appeals determined the arresting officer, because of prior dealings with the defendant, did not have probable cause to believe the defendant was trespassing, therefore the resisting arrest charge could not stand either.  The bulk of the majority opinion, and both dissenting opinions, dealt with the preservation issue.  The majority took great pains to explain that this holding did not affect the two leading cases concerning the preservation requirements re: the insufficiency of trial evidence (People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56):

As a general matter, a lawyer is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected … . When a court rules, a litigant is entitled to take the court at its word. Contrary to what the dissent appears to suggest, a defendant is not required to repeat an argument whenever there is a new proceeding or a new judge.

It is true that a challenge to the sufficiency of the accusatory instrument at arraignment is conceptually different from a challenge based on the proof at trial, and that often an issue decided in one proceeding will not be the same as the issue presented in another. But here the issue was the same. People v Finch, 2014 NY Slip Op 03424, CtApp 5-13-14

 

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Courts Charged with Supervising Defendants Found Not Responsible by Reason of Mental Disease or Defect Have the Power To Impose a Condition Allowing the Office of Mental Health to Seek Judicial Approval for a Mandatory Psychiatric Evaluation When the Defendant Does Not Comply with Release Conditions and Refuses to Be Examined Voluntarily

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that a court charged with supervising a defendant who has been found not responsible by reason of mental disease or defect can include in “an order of conditions a provision allowing the [NYS] Office of Mental Health (OMH) to seek judicial approval of a mandatory psychiatric evaluation in a secure facility when a defendant found not responsible by reason of mental disease or defect fails to comply with the conditions of his release and refuses to undergo voluntary examination.”  The appellate division had held that Criminal Procedure Law section 330.20 prohibited the inclusion of such a requirement in an order of conditions:

Section 330.20 mandates an order of conditions whenever a track-one defendant moves from secure to nonsecure confinement, or is no longer institutionalized (Criminal Procedure Law § 330.20 [11], [12]), and allows the court to fashion these orders in whatever way, in its judgment, most effectively protects the public while serving the defendant's interest in remaining in the least restrictive environment possible. “[T]he order of conditions is the vehicle by which the . . . court effectuates its continuing supervisory authority over” a defendant found not responsible for a crime by reason of mental disease or defect … . And while the Commissioner and the district attorney may appeal from an order of conditions, the defendant may not (see Criminal Procedure Law § 330.20 [21]). This insulates the supervising court from a defendant's attempt to argue that a condition, thought by the judge to be a necessary prophylactic measure, excessively restricts his freedom.

Accordingly, section 330.20 authorizes orders that, along with a prescribed treatment plan, include “any other condition which the court determines to be reasonably necessary or appropriate” (Criminal Procedure Law § 330.20 [1] [o] [emphases added]). * * *

The effective-evaluation provision enables OMH to evaluate a track-one defendant who does not comply with court-ordered conditions and refuses to be examined voluntarily. Track-one defendants are released into the community with the express understanding that they may endanger the public and themselves if their mental health declines. Indeed, reported cases illustrate the perils posed when such defendants do not follow the regime designed by mental-health professionals and imposed by courts to safeguard their stability and functioning in the community … . The dangers of noncompliance are exacerbated when a track-one defendant also refuses to submit to a psychiatric evaluation thereby denying vital information to the Commissioner, whom section 330.20 (12) makes responsible for ensuring compliance with orders of conditions issued with release orders. Matter of Allen B v Sprout, 2014 NY Slip Op 03427, CtApp 5-13-14

 

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Defect Not Trivial as a Matter of Law

The Fourth Department determined defendant failed to establish a defect in pavement was trivial as a matter of law:

Here, we conclude that defendant failed to meet its initial burden of establishing that the defect was trivial and nonactionable as a matter of law … . The photographs submitted in support of defendant’s motion depict a lengthy edge in the pavement that was more than two-thirds of an inch deep and spanned the width of the painted walking area adjacent to the designated handicapped parking space … . Defendant also submitted plaintiff’s deposition testimony, in which she testified that her right foot caught on “a quite high ledge” in the pavement at the rear of the parking space … . Although defendant characterizes the edge as “a small, rounded lip in the pavement,” the photographs depict crumbling asphalt, and the edge appears to be irregular, jagged and abrupt as opposed to gradual …, where the trivial defect involved ” a small area’ ” of a ” cracked and crumbly’ ” curb that “had no measurable depth,’ ” plaintiff’s deposition testimony and the photographs in this case, particularly the photographs depicting the area closest to plaintiff’s vehicle, suggest a measurable edge in the pavement that could pose a tripping hazard. Lupa v City of Oswego, 2014 NY Slip Op 03055, 4th Dept 5-2-14

 

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No Liability for Injury to Child Who Suddenly Darted Out Into Traffic

The Fourth Department determined all causes of action arising from a child’s darting out into traffic should be dismissed. There was no evidence the driver who struck the child (Hosley) was negligent.  And there was no evidence the adults in the car from which the child darted into traffic (Ricks and Still) were negligent.  The driver parked the car intending to escort the child to her school bus:

Specifically, the evidence establishes as a matter of law that, “without looking in the direction of oncoming traffic” …, the child darted from behind the front of Still’s parked vehicle, “directly into the path of” Hosley’s vehicle, leaving Hosley “unable to avoid contact with the [child]” …, and plaintiff failed to raise an issue of fact … . Contrary to plaintiff’s contention, the record does not establish that there is an issue of fact whether Hosley operated her vehicle in a negligent manner. Rather, the record establishes as a matter of law that Hosley acted as a reasonably prudent person when she slowed her rate of speed immediately upon seeing the parked vehicle ahead, and that she proceeded with caution while attempting to pass it safely on the left … .

With respect to the motion of Ricks and Still, we note that “[t]he operator of a private passenger vehicle owes to his passengers a duty of reasonable care [in] providing a safe place to alight” … . Ricks and Still met their initial burden on their motion by establishing that Ricks did not breach that duty to the child when, intending to escort the child, he parked the vehicle against the curb on a side street. Plaintiff’s “[m]ere conclusions, expressions of hope or unsubstantiated allegations” asserted in opposition to the motion failed to raise an issue of fact … . Green v Hosley, 2014 NY Slip Op 03066, 4th Dept 5-2-14

 

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