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THE PARTIES MARRIED IN 1974, STARTED DIVORCE PROCEEDINGS IN 1991, DISCONTINUED THE DIVORCE AND BEGAN LIVING TOGETHER AGAIN IN 1998, CONTINUED LIVING TOGETHER UNTIL THE INSTANT DIVORCE IN 2015; SUPREME COURT ERRED IN FINDING THE ECONOMIC PARTNERSHIP ENDED IN 1991; MATTER REMITTED FOR RECALCULATION OF THE MARITAL PROPERTY AND COUNSEL FEES (SECOND DEPT).

The Second Department, remitting the matter for recalculation of equitable distribution of marital assets and counsel fees, determined Supreme Court erred in finding that the parties ceased to be an economic partnership when they separated and divorce proceedings were commenced in 1991. The parties were married in 1974. The divorce was discontinued in 1998 when defendant moved back into the marital residence. The couple lived together until the instant separation and divorce proceedings in 2015:

… [T]he parties resided together in the marital residence from 1998 until the commencement of the subject action in 2015, and for most of that time, shared the marital residence with the children. During that time, the parties visited relatives and attended social functions together, went on vacations together, and periodically engaged in sexual relations. Although the parties maintained separate bank accounts and credit cards, the parties filed joint tax returns and shared many of the family’s expenses, including the children’s college tuition and home renovations. Moreover, the parties named each other as executors and beneficiaries in their wills. Thus, the evidence demonstrates that the parties functioned as an “economic partnership” after the discontinuance of the prior divorce action, and the Supreme Court improperly found that the parties “ceased functioning as an economic partnership” and “lived separate financial lives” starting in 1991 … . …

… [T]here was no written agreement to keep the parties’ finances separate (cf. Domestic Relations Law § 236[B][1][d][4]). “Marital partners may agree that property they acquire during the marriage will be divided in a particular manner, but that agreement must be in writing” … , or “be part of an oral stipulation placed upon the record in open court and acknowledged in writing to be free from fraud, undue influence and duress” … . Here, the alleged oral agreement between the parties does not constitute such an agreement. Thus, the distribution of marital property “must be based upon the equitable consideration and application of . . . enumerated factors” … , and the court is required to “set forth the factors it considered and the reasons for its decision” … . Potvin v Potvin, 2021 NY Slip Op 02429, Second Dept 4-21-21

 

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APPEAL HELD AND MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO VACATE HIS GUILTY PLEA ON THE GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES (SECOND DEPT).

The Second Department held the appeal in abeyance and remitted the matter to give defendant the opportunity to move the vacate his guilty plea on the ground he was not informed of the possibility he would be deported based on his plea:

“A defendant seeking to vacate a plea based on this failure must demonstrate that there is a ‘reasonable probability’ that he or she would not have entered a plea of guilty and would instead have gone to trial had the court warned of the possibility of deportation” … . Here, in the absence of the warning required under People v Peque (22 NY3d at 176), we remit the matter to the Supreme Court, Queens County, to afford the defendant an opportunity to move to vacate his plea, and thereafter for a report to this Court limited to the Supreme Court’s findings with respect to whether the defendant has moved to vacate his plea of guilty and whether he has established his entitlement to the withdrawal of his plea. Any such motion shall be made by the defendant within 60 days after the date of this decision and order, and, upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation … . We hold the appeal in abeyance pending receipt of the Supreme Court’s report. We express no opinion as to the merits of the defendant’s motion, should he make one … . People v Torres, 2021 NY Slip Op 02424, Second Dept 4-21-21

 

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THE RECORD DOES NOT DEMONSTRATE SUPREME COURT CONSIDERED WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHUL OFFENDER STATUS; SENTENCE VACATED (SECOND DEPT). ​

The Second Department, vacating defendant’s sentence, remitted the matter for a consideration of whether defendant should be afforded youthful offender status:

CPL 720.20(1) requires “that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain” … . The Supreme Court was required to determine on the record whether the defendant, whose conviction for robbery in the first degree constituted an armed felony … , was an “eligible youth” … , by considering the presence or absence of the factors set forth in CPL 720.10(3) and, if so, whether he should be afforded youthful offender status … . As the People concede, the record does not demonstrate that the court made that determination. People v Hill, 2021 NY Slip Op 02422, Second Dept 4-21-21

 

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THE JUDGE’S LAW CLERK, A FORMER ASS’T DA, DISCUSSED DEFENDANT’S SENTENCING WITH THE JUDGE; THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE SENTENCING, SENTENCE VACATED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the sentencing judge should have recused himself because his law clerk, a former assistant DA, was not screened from the case:

… [A]fter the verdict was rendered, but prior to sentencing, the trial justice hired as his law clerk a former Queens County Assistant District Attorney who had been involved in the investigation and the early stages of the defendant’s prosecution. “‘[A] law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge’s own exercise of the judicial function'” … .

Under the circumstances of this case, due process principles did not require recusal, as there was no indication that the trial justice had a direct, personal, substantial, or pecuniary interest in the case … . However, since the law clerk was not screened from working on this case and, according to the trial justice, actually discussed the sentencing of the defendant with the justice, the justice should have recused himself “‘in a special effort to maintain the appearance of impartiality'” … . People v Hymes, 2021 NY Slip Op 02412, Second Dept 4-21-21

 

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AT THE HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, DEFENDANT PRESENTED SEVERAL WITNESSES WHO SUPPORTED HIS ALIBI DEFENSE; DEFENSE COUNSEL HAD BEEN MADE AWARE OF THE WITNESSES BUT FAILED TO INVESTIGATE; THERE CAN BE NO STRATEGIC JUSTIFICATION FOR SUCH A FAILURE; DEFENDANT’S CONVICTION SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction based upon ineffective of counsel should have granted. Although defendant did not demonstrate “actual innocence,” the defendant presented several witnesses who testified defendant had left the party before the shooting and defendant’s hair was short, not braided, at the time of the shooting. The perpetrator was described as having braids:

Although a defendant claiming ineffective representation “bears the ultimate burden of showing . . . the absence of strategic or other legitimate explanations for counsel’s challenged actions” … , “[i]t simply cannot be said that a total failure to investigate the facts of a case, or review pertinent records, constitutes a trial strategy resulting in meaningful representation” … . Here, the failure by the defendant’s trial counsel to contact and interview these witnesses cannot be characterized as a legitimate strategic decision since, without collecting that information, counsel could not make an informed decision as to whether the witnesses’ evidence might be helpful at trial … . The fact that some of these witnesses had criminal records does not excuse trial counsel’s failure to investigate since a witness’s “‘unsavory background[ ]’ does not render his or her ‘testimony incredible as a matter of law,'” particularly since the People regularly rely on witnesses with criminal backgrounds, and did so in this case … . Moreover, even if the witnesses’ criminal records provided a strategic basis for choosing not to present their testimony, it does not provide an excuse for counsel’s failure to investigate them as possible witnesses … . People v Davis, 2021 NY Slip Op 02408, Second Dept 4-21-21

 

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THE STOP OF DEFENDANT’S CAR WAS NOT SUPPORTED BY REASONABLE SUSPICION; THE REPORT THAT A SUSPICIOUS CAR WAS FOLLOWING SOMEONE DID NOT DESCRIBE THE CAR AND DEFENDANT WAS NOT FOLLOWING ANYONE WHEN STOPPED; THE PROOF AT THE SUPPRESSION HEARING DID NOT DEMONSTRATE DEFENDANT WAS TRESPASSING BY DRIVING ON THE PRIVATE ROAD, WHICH WAS THE JUSTIFICATION FOR THE STOP RELIED UPON BY SUPREME COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress a gravity knife seized by a police officer after a traffic stop should have been granted. The officer received a report of a “suspicious vehicle following someone” without any description of the vehicle. The officer eventually stopped defendant’s car, which was moving slowly but was not following anyone. After the stop the officer saw the knife inside the car, but did not recognize it as a gravity knife until he picked it up. Supreme Court found the stop justified because defendant was trespassing by driving on a private road. However that theory was not raised at the suppression hearing and no evidence other than an ambiguous sign on an open gate suggested driving on the road would constitute trespassing:

The evidence at the hearing established that at the time Officer Paolillo stopped the defendant’s vehicle on Valley Road, the defendant was not following anyone, and was merely driving slowly down the road. In the initial call to the police, there was no vehicle description provided, and thus Officer Paolillo could not have known if this was the vehicle which had been observed following someone. Contrary to the Supreme Court’s conclusion, the testimony at the hearing did not establish that Valley Road was private property upon which trespass was forbidden. Officer Paolillo did not testify that he suspected the defendant of criminal trespass, or that Valley Road was a private road. When asked who generally uses the road, the officer testified “mainly the residents.” When asked how the traffic conditions were on the road, the officer testified “[v]ery light. Like I said, if anybody is down there, it’s basically they live down there.” The officer described that there were gates on the side of the road, which were open, and a sign which states “North Country Colony, Private Property, No Trespassing.” However, the officer was not asked whether this sign referred to the roadway itself or the residential properties located thereon. The officer provided no testimony which could have allowed the court to conclude that if someone was simply driving on Valley Road, it would be an act of trespass. Additionally, based upon the officer’s testimony, it was clear that Valley Road is not a dead end, but rather it has outlets to other roads.

Since there was nothing observed by Officer Paolillo which could have allowed him to conclude that criminal activity was at hand, the officer lacked reasonable suspicion to stop the defendant’s vehicle … . People v Ahmad, 2021 NY Slip Op 02404, Second Dept 4-21-21

 

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A VIDEO OF AN ALLEGED ASSAULT BY DEFENDANT’S EMPLOYEES WAS EITHER NEGLIGENTLY OR WILLFULLY LOST; SUPREME COURT PROPERLY RULED DEFENDANTS COULD NOT INTRODUCE ANY EVIDENCE WHICH CONTRADICTED AN AFFIDAVIT DESCRIBING WHAT THE VIDEO DEPICTED (SECOND DEPT).

The Second Department determined the sanction imposed on defendants for spoliation of evidence was appropriate. Defendants did not preserve the video of an incident in which plaintiff was allegedly assaulted by employees of the NYC Department of Homeless Services (DHS). Plaintiff’s attorney had specifically requested that the video be preserved. The day after the incident the video was reviewed by a security who described the video in an affidavit. When the video was not produced by the defendants, Supreme Court ruled the defendants could not introduce any evidence which contradicted the affidavit describing the video:

“A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” … . “A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence”… . “The Supreme Court has broad discretion to determine a sanction for the spoliation of evidence”  … .

Here, contrary to the defendants’ contention, the record demonstrates that the relevant video evidence was owned and controlled by DHS, that DHS possessed an obligation to preserve the evidence at the time that it was lost or destroyed, and that DHS negligently or wilfully failed to ensure its preservation … . Furthermore, under the circumstances of this case, the sanction imposed by the Supreme Court provided “proportionate relief” to the plaintiff and was not an improvident exercise of discretion … . Oppenheimer v City of New York, 2021 NY Slip Op 02401, Second Dept 4-21-21

 

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FAMILY COURT SHOULD HAVE CONDUCTED A HEARING IN THIS CUSTODY/PARENTAL ACCESS PROCEEDING AND SHOULD HAVE MADE FINDINGS OF FACT AS REQUIRED BY CPLR 4213 (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing should have been held in this custody/parental access proceeding. The court noted Family Court failed to set forth findings of fact as required by CPLR 4213 (b):

Parental access determinations should “[g]enerally be made only after a full and plenary hearing and inquiry” … . “While the general right to a hearing in [parental access] cases is not absolute, where ‘facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ a hearing is required” … . Here, the record shows that there were disputed factual issues regarding the finding of the children’s best interests such that a hearing on the father’s parental access was required … . … [W]e note that the decision issued by the Supreme Court failed to comply with CPLR 4213(b) in that it did not set forth findings of fact … . Matter of Vazquez v Bahr, 2021 NY Slip Op 02397, Second Dept 4-21-21

 

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PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT (SCPA), AN ADMINISTRATOR MAY BE SUSPENDED WITHOUT A PETITION OR ISSUANCE OF PROCESS FOR MISAPPROPRIATING ESTATE PROPERTY (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the motion to suspend the administrators of the estate should have been granted. The administrators had allowed the estate to languish for 20 years and there was evidence estate property had been misappropriated by one administrator:

Pursuant to SCPA 719, “the court may make a decree suspending . . . or revoking letters issued to a fiduciary from the court . . . without a petition or the issuance of process” where, among other things, “any of the facts provided in [SCPA] 711 are brought to the attention of the court” (SCPA 719[10] … . The circumstances set forth under SCPA 711 justifying “a decree suspending . . . or revoking those letters” include a fiduciary “having wasted or improperly applied the assets of the estate” … or having “removed property of the estate . . . without prior approval of the court” … . “The removal of a fiduciary pursuant to SCPA 711 and 719 is equivalent to ‘a judicial nullification of the testator’s choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established'” … . The grounds set forth under SCPA 711 may be clearly established “by undisputed facts or concessions, where the fiduciary’s in-court conduct causes such facts to be within the court’s knowledge, or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding” … . “Thus, revoking a fiduciary’s letters . . . pursuant to SCPA 719 will constitute an abuse of discretion ‘where the facts are disputed, where conflicting inferences may be drawn therefrom, . . . or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy'” … .

Here, the record contains undisputed evidence of conflict between the administrators, and evidence that the animosity between them has interfered with the expeditious administration of the decedent’s estate, which they have allowed to languish for nearly two decades … . Moreover, Menfus [one of the administrators] admitted … he executed a deed to one of the subject properties to himself, and permitted his father to live in the other property rent free. Matter of Steward, 2021 NY Slip Op 02395, Second Dept 4-21-21

 

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THE ARBITRATORS’ AWARD IN THIS RELIGIOUS DIVORCE PROCEEDING WAS NOT INVALID BECAUSE THE ARBRITRATORS DID NOT STATE THE REASONS FOR THE AWARD, AND THE AWARD WAS NOT INDEFINITE AND NONFINAL; SUPREME COURT SHOULD NOT HAVE VACATED THE AWARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitration award should not have been vacated. The award, issued by a rabbinical tribunal in a religious divorce proceeding, required the respondent to arrange for the religious divorce (a Get) and required petitioner to accept the religious divorce. A lump sum award and maintenance of $10,000 per month was to be held in escrow until the Get is accepted. Supreme Court held the award was indefinite or nonfinal and the arbitrators failed to state the reasons for the award:

Contrary to the conclusion of the Supreme Court, the arbitrators were not required to give reasons for their arbitration award … . Further, the arbitration award did not leave the parties unable to determine their rights and obligations, resolved the controversy before the arbitrators, and did not create a new controversy; therefore, the arbitration award was not indefinite or nonfinal for purposes of CPLR 7511 … . The respondent’s obligation to pay maintenance continued because he failed to arrange for issuance of a Get and termination of the marriage—not because the terms of the arbitration award were not definite. Matter of Rokeach v Salamon, 2021 NY Slip Op 02393, Second Dept 4-21-21

 

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