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ARGUING FOR LENIENCY IN SENTENCING DOES NOT PRESERVE THE ARGUMENT THAT THE SENTENCING WAS VINDICTIVE (CT APP).

The Court of Appeals determined the argument that the sentence to imprisonment was vindictive was not preserved. Defendant had successfully appealed his conviction after a nonjury verdict and then pled guilty to a different offense before a different judge. Although defendant argued for leniency, that did not preserve the “vindictive sentencing” argument:

The claim that the sentence imposed upon defendant’s guilty plea was presumptively vindictive and imposed without State Due Process protections … is unpreserved. Defendant’s arguments against imposition of the term of imprisonment, registered before the court imposed sentence, were consistent with arguments for leniency and made no specific reference to the principle of vindictiveness or any potential constitutional violation. Defendant also failed to either object to the sentence actually imposed or move to withdraw his guilty plea. Nor does this record support a claim that the sentence, which was within the ambit of the range of sentences for a class A misdemeanor, was illegal in a respect that “can readily be discerned from the . . . record” … . As a result, defendant’s arguments are unreviewable. People v Olds, 2021 NY Slip Op 02019, CtApp 4-1-21

 

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THE CRIMINAL PROCEDURE LAW DOES NOT PROHIBIT REPROSECUTION BY A SIMPLIFIED TRAFFIC INFORMATION AFTER THE ORIGINAL IS DISMISSED FOR FAILURE TO PROVIDE A SUPPORTING DEPOSITION; THE CONTRARY RULE IN THE APPELLATE TERM FOR THE NINTH AND TENTH JUDICIAL DISTRICTS SHOULD NO LONGER BE FOLLOWED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over an extensive dissenting opinion, determined the Appellate Term’s prohibiting the filing of a new simplified traffic information after the original was dismissed for failure to provide a supporting deposition was not supported by the Criminal Procedure Law and conflicted with a prior Court of Appeals decision:

The Appellate Term for the Ninth and Tenth Judicial Districts has adopted a rule of criminal procedure under which, absent special circumstances, the People cannot reprosecute a defendant by filing a new simplified traffic information after the original simplified traffic information was dismissed for facial insufficiency under CPL 100.40 (2) for failure to provide a requested supporting deposition in a timely manner. Because that rule has no basis in the Criminal Procedure Law and contravenes our holding in People v Nuccio (78 NY2d 102 [1991]), we reverse. * * *

… [A]lthough the Criminal Procedure Law requires a prosecutor to seek permission from the court to resubmit evidence and charges to a grand jury after dismissal of a defective or legally insufficient indictment, there is no similar statutory requirement for filing a new accusatory instrument after dismissal of a facially insufficient simplified information. In Nuccio, we concluded that “the different treatment accorded indictments and informations in the statute manifests the Legislature’s intention to permit reprosecution for nonfelony charges when the information is dismissed for legal insufficiency” (Nuccio, 78 NY2d at 105). …

The Criminal Procedure Law does not prohibit reprosecution upon a facially sufficient accusatory instrument after such a dismissal, whether by information or by simplified traffic information with a supporting deposition. Accordingly, the People were entitled to reprosecute the traffic violation after dismissal of the first simplified traffic information. People v Epakchi, 2021 NY Slip Op 02018, CtApp 4-1-21

 

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THE 2009 AMENDMENTS TO THE WORKERS’ COMPENSATION LAW ALLOWED LUMP SUM PAYMENTS OF SCHEDULE LOSS OF USE (SLU) AWARDS; CLAIMANT DIED BEFORE THE SLU AWARD WAS MADE; CLAIMANT’S ESTATE IS NOT ENTITLED TO THE LUMP SUM AWARD (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurring opinion, determined that the 2009 amendments allowing lump sum schedule loss of use (SLU) awards did not entitle claimant’s estate to the lump sum award. The estate was entitled only to the portion of the award that would have been due to the claimant for the period prior to his death:

In December 2014, decedent claimant Norman Youngjohn sustained injuries when he slipped on ice and fell in a parking lot at work while employed by Berry Plastics Corporation. After decedent sought workers’ compensation benefits, a claim was established for injuries to his right shoulder and left elbow, and he was awarded temporary benefits. In September 2016, decedent notified the Workers’ Compensation Board that his injuries had become permanent, and the workers’ compensation insurance carrier (the Carrier) subsequently notified the Board that decedent’s injuries were amenable to a schedule loss of use (SLU) award (see generally Workers’ Compensation Law § 15 [3]). However, in March 2017, before resolution of his claim for permanent partial disability benefits, decedent suffered a fatal heart attack unassociated with his work-related injuries. * * *

The legislature’s 2009 amendments to Workers’ Compensation Law §§ 15 (3) (u) and 25 (1) (b)—which provide that SLU awards may be “payable” in a lump sum upon request of the injured employee …—changed the allowable methods of payment for SLU awards. However, the Estate’s contention that these amendments implicitly provide a claimant’s estate a new entitlement to the value of an SLU award upon a claimant’s death, or otherwise direct that an SLU award “accrues” at that time for purposes of an estate’s recovery—issues that are distinct from the permissible methods of payment for such awards …—cannot be reconciled with the fact that the legislature did not amend Workers’ Compensation Law § 15 (4) (d) when it authorized lump sum payments. An estate’s entitlement to an SLU award upon a claimant’s death remains governed by Workers’ Compensation Law § 15 (4) (d), which was left untouched by the 2009 amendments. Matter of Estate of Youngjohn v Berry Plastics Corp., 2021 NY Slip Op 02017, CtApp 4-1-21

 

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SENTENCES FOR THE SALE OF TWO DRUGS IN THE SAME TRANSACTION SHOULD HAVE BEEN IMPOSED CONCURRENTLY (THIRD DEPT).

The Third Department determined the sentences for two counts of criminal sale of a controlled substance should run concurrently because they were committed during a single transaction:

… [T]he People failed to prove that defendant committed two separate and distinct acts. Counts 1 and 2 were for criminal sale of a controlled substance in the third degree — one for each drug; thus, the actus reus elements are the same … . The record reveals that the CI made arrangements for one sale to take place and defendant engaged in a single transaction — one sale of two controlled substances. The sale occurred in defendant’s vehicle where there was an exchange of money for one bag of drugs, containing two smaller bags of drugs. As the offenses were committed through one single distinct act, the sentences imposed on counts 1 and 2 should run concurrently … . People v Muniz, 2021 NY Slip Op 02023, Third Dept 4-1-21

 

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FATHER’S EXCUSE FOR NOT APPEARING (HE OVERSLEPT) WAS REASONABLE UNDER THE CIRCUMSTANCES AND FATHER DEMONSTRATED A MERITORIOUS DEFENSE TO THE GRANDPARENTS’ PETITION FOR CUSTODY OF THE CHILD; DEFAULT CUSTODY ORDER VACATED AND MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined father’s motion to vacate the order granting, without a hearing, custody of the child to the grandparents should have been granted. The Third Department found that father’s failure to appear was excusable (he overslept) and father had a meritorious defense to the grandparents’ application for custody:

Although oversleeping may not ordinarily constitute a reasonable excuse, we find such excuse to be reasonable under the particular circumstances of this case … . …

… [B]efore Family Court may award custody to a nonparent, it must have first made a finding of extraordinary circumstances and then determined that such award is in the child’s best interests … . …

… .Family Court failed to conduct an evidentiary hearing and make the requisite extraordinary circumstances and best interests findings prior to awarding the grandparents permanent custody of the child. … Family Court’s failures in this regard, together with the father’s superior claim to custody of the child, constitute a meritorious defense … . Matter of Melissa F. v Raymond E., 2021 NY Slip Op 02026, Third Dept 4-1-21

 

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WARREN COUNTY DID NOT HAVE “PARTICULAR EFFECT” JURISDICTION OVER CRIMINAL OFFENSES ALLEGED TO HAVE BEEN COMMITTED IN SARATOGA COUNTY (THIRD DEPT).

The Third Department determined the Article 78 prohibition petition was the appropriate vehicle for raising the issue whether Warren County had jurisdiction over offenses alleged to have been committed in Saratoga County. The Third Department held the charges could not be brought in Warren County under the so-called “particular effect” rationale (i.e., the argument that the offenses had a “particular effect” on Warren County). The petitioner, who resided in Warren County, was charged with grand larceny and other offenses alleged to have been committed when petitioner was treasurer of Lake George EMS involving bank accounts in Saratoga County:

Respondent failed to demonstrate that the evidence before the grand jury established that Warren County has particular effect jurisdiction over the instant crimes. Respondent submitted his paraphrased testimony of one witness, whose familiarity with Lake George EMS and/or source of information was not disclosed. According to respondent, the witness testified that petitioner stole money from Lake George EMS at a time when he knew the organization was having difficulty meeting payroll. Based on this testimony, respondent argued that petitioner’s conduct “was likely to create a situation where emergency medical services would be restricted or discontinued by the Lake George [EMS] thus having a materially harmful impact upon the community welfare.” In our view, such testimony fails to demonstrate a concrete and identifiable injury to the Warren County community. Matter of Gentner v Hall, 2021 NY Slip Op 02028, Third Dept 4-1-21

 

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THE DEFENDANTS SOUGHT REFORMATION OF AN INSURANCE POLICY ALLEGING THE FAILURE TO NAME THEM INDIVIDUALLY AS INSUREDS WAS DUE TO A MUTUAL MISTAKE; THE 3RD DEPARTMENT, OVER A TWO-JUSTICE DISSENT, REVERSED SUPREME COURT AND HELD THE COMPLAINT FAILED TO STATE A CAUSE OF ACTION (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined defendant property owners (Pollards) did not state a cause of action for reformation of an insurance policy based upon mutual mistake. Defendants’ tenant slipped and fell on a staircase outside his apartment at 192-198 Main Street and made a claim against defendants. Defendants’ business, Pollard Excavating, was insured. The insurer disclaimed coverage of the slip and fall at defendants’ apartment because the policy covered only defendants’ business:

The Pollards … allege that they believed that they were covered in their individual capacities and that the failure of [the insurer] to name them as such was the product of a mutual mistake. “It is well established that when interpreting an insurance contract, as with any written contract, the court must afford the unambiguous provisions of the policy their plain and ordinary meaning” … .

… [T]he … third-party complaint asserts that the Pollards own the buildings located at 192-198 Main Street and that they are shareholders of Pollard Excavating and Pollard Disposal. The coverage form contained in the policy issued to Pollard Excavating specifically identifies the insured under the policy as a “corporation in the business of excavating” and further identifies, as relevant here, that “your stockholders are also insureds, but only with respect to their liability as stockholders.” Inasmuch as the express provisions of the insurance policy contract do not include individual coverage for the Pollards, it was incumbent upon the Pollards to allege sufficient facts showing mutual mistake. To that end, the second amended third-party complaint fails to contain any factual allegations that [the insurer] agreed to provide coverage to the Pollards in their individual capacities or that any oral agreement was reached by which [the insurer]  was obligated to do so. We therefore find that the … third-party complaint fails to allege with sufficient particularity that the parties “reached an oral agreement and, unknown to either [party], the signed writing does not express that agreement” … . Hilgreen v Pollard Excavating, Inc., 2021 NY Slip Op 02031, Third Dept 4-1-21

 

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PLAINTIFF ESTATE MET THE CRITERIA FOR ATTACHMENT AGAINST REAL PROPERTY OWNED BY DEFENDANTS WHO OWNED AND/OR OPERATED A LIMOUSINE RENTAL SERVICE; THE LIMOUSINE WAS INVOVLED IN A HORRIFIC ACCIDENT KILLING PLAINTIFF’S DECEDENT AND 19 OTHERS (THIRD DEPT).

The Third Department, affirming Supreme Court, over a concurring memorandum, determined the criteria for attachment were met by plaintiff against real property owned by the Hussain defendants. The Hussain defendants owned and/or operated a business which rented a limousine involved in an accident killing plaintiff’s decedent and 19 others:

Plaintiff demonstrated a probability of success on his claims [relating the maintenance of the limousine].

Plaintiff … pointed to CPLR 6201 (3), which, because he is likely to succeed in recovering a money judgment against defendants, applies if defendants “assigned, disposed of, encumbered or secreted property,” or were about to do so, with the “intent to defraud [their] creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff’s favor” … . … As “[t]he mere removal or assignment or other disposition of property is not grounds for attachment,” however, plaintiff was further required to show that defendants offered the four properties for sale with the requisite intent to either defraud their creditors or frustrate a potential money judgment  … . …

Plaintiff … met his burden of showing that defendants harbored the requisite intent in attempting to dispose of the parcels at issue and, in the absence of any proof to rebut that showing, he was properly granted confirmation under CPLR 6201 (3) … . …

Plaintiff was … entitled to confirmation with regard to Shahed Hussain because he was “a nondomiciliary residing without the state” within the meaning of CPLR 6201 (1). Plaintiff represented, with support from annexed newspaper accounts, that Shahed Hussain left New York for Pakistan in March 2018 and had no plans to return to the United States. Halse v Hussain, 2021 NY Slip Op 02032, Third Dept 4-1-21

 

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THE CUSTODY AWARD SHOULD NOT HAVE BEEN MADE, SUA SPONTE, WITHOUT A PLENARY HEARING; WHERE A CUSTODY AWARD IS MADE WITHOUT A HEARING THE COURT SHOULD ARTICULATE THE FACTORS CONSIDERED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the court should have held a hearing before awarding sole custody of the children to plaintiff. The Second Department noted that, where a hearing is not held, the court should articulate the factors considered:

“The court’s paramount concern in any custody and visitation proceeding is to determine, under the totality of the circumstances, what is in the best interests of the child[ren]” … . “Custody determinations should generally be made only after a full and plenary hearing and inquiry. This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interests of the child” … . “[A] court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … .

Here, the record reflects that the Supreme Court failed to inquire into whether an award of sole legal and physical custody to the plaintiff was in the best interests of the children … . Moreover, the court failed to articulate what factors it considered in awarding custody to the plaintiff … . Indictor v Indictor, 2021 NY Slip Op 01968, Second Dept 3-31-21

 

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THE 2ND DEPARTMENT REVERSED THE AWARD OF SUMMARY JUDGMENT TO THE BANK BECAUSE ONE OF TWO BORROWERS WAS NOT NAMED IN THE RPAPL 1306 FILING; THIS RULING MAY NOT HOLD UP BECAUSE, ON MARCH 30, 2021, THE COURT OF APPEALS HELD ONLY ONE BORROWER NEED BE NAMED IN THE RPAPL 1306 FILING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should not have been granted because an apparent borrower, Kosin, was not named in the bank’s electronic filing required by RPAPL 1306. [Note that the Court of Appeals, on March 30, 2021, held that the bank need only name one borrower in the RPAPL 1306 notice. That holding may or may not apply to this case, which has slightly different facts in that it was not certain Kosin was, in fact, a borrower. See CIT Bank N.A. v Schiffman, 2021 NY Slip Op 01933, CtApp 3-30-21.]:

… [T]he plaintiff’s noncompliance with RPAPL 1306 by establishing that the plaintiff only made an RPAPL 1306 filing with respect to [defendant borrower] Hollien, but did not make any such filing with respect to Kosin. In opposition, the plaintiff failed to raise a triable issue of fact as to its compliance with this necessary precondition to commencement of a foreclosure action … . Contrary to the plaintiff’s contention, it was still required to comply with RPAPL 1304 and 1306 with respect to Kosin because, although Kosin was not listed as a “borrower” on the note, he was defined as a “borrower” on the mortgage agreement. Since the mortgage agreement refers to Kosin as a “borrower” on both the first page and the signature page, Kosin is a “borrower” for purposes of RPAPL 1304 and 1306 … . Although there is some ambiguity in the language of the mortgage agreement, any ambiguities in the language of the document must be construed against the plaintiff, as the plaintiff is the party who supplied the document … . Federal Natl. Mtge. Assn. v Hollien, 2021 NY Slip Op 01963, Second Dept 3-31-21

 

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