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POSTREADINESS DELAY BECAUSE A PROSECUTION WITNESS WAS ON VACATION WAS CHARGEABLE TO THE PEOPLE, DEFENDANT’S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined a period of postreadiness delay because a prosecution witness was on vacation was chargeable to the People and the defendant’s speedy trial motion should have been granted:

It is well established that “[t]he unavailability of a prosecution witness may be a sufficient justification for delay . .. , provided that the People attempted with due diligence to make the witness available” … . Additionally, the reason for the witness’s unavailability is relevant to determining whether a delay is justified. Where a witness is unavailable because of medical reasons or military deployment, courts generally have held that the delay is not chargeable to the People … . Where the witness is unavailable because he or she has taken a vacation, however, many courts have charged the time to the People … . That is because “the mere fact that a necessary witness plans to go on a vacation does not relieve [the People] of their speedy trial obligation” … . Here, the People did not establish that they exercised due diligence to secure the witness’s presence on the scheduled trial date, and we conclude that the delay arising from the witness’s unavailability during his vacation is chargeable to the People. People v Harrison, 2019 NY Slip Op 03173, Fourth Dept 4-26-19

 

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NEW YORK DID NOT HAVE SUBJECT MATTER JURISDICTION OVER A CUSTODY MATTER BECAUSE THE CHILD HAD NOT LIVED IN NEW YORK FOR SIX MONTHS AT THE TIME THE PROCEEDINGS WERE COMMENCED, NEW JERSEY STILL HAD JURISDICTION AT THAT TIME BECAUSE THE CHILD HAD BEEN REMOVED FROM NEW JERSEY LESS THAN SIX MONTHS BEFORE THE NEW YORK PROCEEDINGS WERE COMMENCED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, reversing Family Court, determined that New York did not have subject matter jurisdiction over a child custody proceeding. At the time the proceeding was brought the child had not lived in New York for six months and New Jersey still had jurisdiction. The Fourth Department went through the history of jurisdictional issues in custody matters and through each of the grounds for jurisdiction codified in the Domestic Relations Law:

Instead of claiming home state jurisdiction under Domestic Relations Law § 76 (1) (a), the mother essentially argues that the court had subject matter jurisdiction over this proceeding under the safety net provision of section 76 (1) (d), which confers jurisdiction to make custody determinations when, insofar as relevant here, “no court of any other state would have jurisdiction under the criteria specified in [section 76 (1)] (a).” …

We reject the mother’s reliance on section 76 (1) (d). Under the special UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] definition of “home state” applicable to infants under six months old (Domestic Relations Law § 75-a [7]; NJ Stat Ann § 2A:34-54), New Jersey was the child’s “home state” between the date of his birth (February 18, 2015) and the alleged date of his move to New York (July 15, 2015) … . Because the UCCJEA confers continuing jurisdiction on the state that “was the home state of the child within six months before the commencement of the proceeding” if a parent lives in that state without the child (Domestic Relations Law § 76 [1] [a]; NJ Stat Ann § 2A:34-65 [a] [1]), it follows that New Jersey retained continuing jurisdiction of this matter until January 15, 2016, i.e., six months after the child’s alleged move to New York on July 15, 2015 and one week after the instant proceeding was commenced on January 8, 2016 … . Thus, New York lacked jurisdiction under section 76 (1) (d) because New Jersey could have exercised jurisdiction under the criteria of section 76 (1) (a) on the date of this proceeding’s commencement … . Matter of Nemes v Tutino, 2019 NY Slip Op 03236, Fourth Dept 4-26-19

 

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UNAUTHORIZED USE OF A VEHICLE WAS A LESSER INCLUSORY CONCURRENT COUNT OF THE GRAND LARCENY COUNT, CONVICTION ON THE GRAND LARCENY COUNT REQUIRED DISMISSAL OF THE LESSER COUNT (FOURTH DEPT).

The Fourth Department dismissed the unauthorized use of a vehicle charge as a lesser inclusory concurrent count of the grand larceny charge, which was based upon car theft:

… “[B]ecause it is impossible to commit the crime of grand larceny in the fourth degree under Penal Law § 155.30 (8) without concomitantly committing the crime of unauthorized use of a vehicle in the third degree under section 165.05 (1)” … , we agree with defendant and the People that count three of the indictment, charging the latter crime, must be dismissed because it is a lesser inclusory concurrent count of count two, charging the former crime … . People v Hickey, 2019 NY Slip Op 03165, Fourth Dept 4-26-19

 

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DESPITE THE PROVISION IN THE SEPARATION AGREEMENT REQUIRING THAT ANY MODIFICATION OF SUPPORT APPLY NEW JERSEY LAW, BECAUSE ALL PARTIES RESIDED IN NEW YORK WHEN THE MODIFICATION APPLICATION WAS MADE, NEW YORK LAW CONTROLS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court, determined that. despite the choice of law provision in the separation agreement, New York law applied to any modification of child support. The family lived in New Jersey when the separation agreement, providing that New Jersey law would control support modification, was executed. But all parties were living in New York when the application for modification was made:

… [W]e conclude that the court had jurisdiction pursuant to the Uniform Interstate Family Support Act ([UIFSA] Family Ct Act art 5-B) to resolve the issues raised in the mother’s petition and objections … . The UIFSA unequivocally provides that where, as here, the parents reside in this state “and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state’s child support order in a proceeding to register that order” … . Furthermore, we agree with the mother that New York law must be applied to determine the father’s child support obligation here inasmuch as the statute further provides that “[a] tribunal of this state exercising jurisdiction under this section shall apply . . . the procedural and substantive law of this state to the proceeding for enforcement or modification” (Family Ct Act § 580-613 [b]). …

Although courts will generally enforce a choice of law clause ” so long as the chosen law bears a reasonable relationship to the parties or the transaction’ ” … , courts will not enforce such clauses where the chosen law violates ” some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal’ ” … . It is long settled that New York has a “strong public policy that obligates a parent to support his or her child” . Under New York law, child support obligations are required to be calculated pursuant to the Child Support Standards Act ([CSSA] Family Ct Act § 413), and ” [t]he duty of a parent to support his or her child shall not be eliminated or diminished by the terms of a separation agreement’ ” … . In addition, whereas … Jersey law provides that child support obligations generally end when a child reaches the age of 19 … , in New York, “[a] parent’s duty to support his or her child until the child reaches the age of 21 years is a matter of fundamental public policy” … . Under the circumstances, and given that the parties do not have a valid agreement to opt out of the CSSA (see generally Domestic Relations Law § 240 [1-b] [h]), we conclude that enforcement of the parties’ choice of law provision would violate those strong New York public policies. Matter of Brooks v Brooks, 2019 NY Slip Op 03164, Fourth Dept 4-26-19

 

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STATEMENTS MADE AFTER DEFENDANT REQUESTED AN ATTORNEY SHOULD HAVE BEEN SUPPRESSED, ERROR WAS NOT HARMLESS (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that defendant’s statements, made after he had asked for an attorney, should have been suppressed. The court further disagreed with the People’s argument that the error was harmless:

We agree with defendant, however, that County Court … erred in denying that part of his omnibus motion seeking to suppress the statements that he made while at the police station after he unequivocally asserted his right to counsel by asking, “May I have an attorney please, a lawyer?” Specifically, we conclude that the court erred in refusing to suppress the statements that defendant made to investigators during his videotaped interrogation … after requesting an attorney and the statements that defendant made on the videotape after the investigators left the interview room … .

We further conclude that, contrary to the People’s assertion, the court’s error is not harmless inasmuch as there is a “reasonable possibility that the error might have contributed to defendant’s conviction” … . The defense theory at trial was that defendant had consensual sexual contact with the victim. During the videotaped interrogation viewed by the jury, however, defendant repeatedly denied having had any sexual contact with the victim. He then admitted that he had lied, but nevertheless continued to deny that sexual contact had occurred. In addition, the prosecutor, on redirect examination of one of the investigators, elicited testimony establishing that, after the investigators left the room, defendant was recorded making an additional comment that contradicted his earlier statements. People v Jackson, 2019 NY Slip Op 03162, Fourth Dept 4-26-19

 

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MOTION TO AMEND THE COMPLAINTS IN THESE RESIDENTIAL MORTGAGE BACKED SECURITIES ACTIONS SHOULD HAVE BEEN GRANTED, COMPETING INTERPRETATIONS OF A CONTRACT SHOULD NOT BE DETERMINED AT THE MOTION-TO-DISMISS STAGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Richter, over a partial dissent, determined plaintiff’s (the Trustee’s) motion to amend its complaints in these residential mortgage backed securities actions should have been granted. The amendment sought to allege defendant breached the underlying contract by failing to notify the trustee of loan breaches. The majority found that the contract provision requiring notice was ambiguous. The dissent argued the contract was not ambiguous and did not require notification:

It is well settled that “[a] request for leave to amend a complaint should be freely given, and denied only if there is prejudice or surprise resulting directly from the delay, or if the proposed amendment is palpably improper or insufficient as a matter of law” … . “A party opposing leave to amend must overcome a heavy presumption of validity in favor of [permitting amendment]” … .

Judged by these standards, the motion court should have granted the Trustee’s motions for leave to file the amended complaints with respect to the express breach of contract claims based on DBSP’s (defendant’s) failure to notify the Trustee of the loan breaches … . It cannot be said, at this early stage of the proceedings, that these claims are “palpably improper or insufficient as a matter of law” … . Nor has DBSP asserted, let alone shown, that it would suffer any prejudice or surprise directly resulting from the delay. * * *

… [B]because the disputed provision is reasonably susceptible to more than one interpretation, “it cannot be construed as a matter of law, and dismissal . . . is not appropriate” … . LDIR, LLC v DB Structured Prods., Inc., 2019 NY Slip Op 03154, First Dept 4-25-19

 

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DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE HE MISCALCULATED AND FILED A SPEEDY TRIAL MOTION TEN DAYS BEFORE THE SPEEDY TRIAL CLOCK RAN OUT, DEFENDANT’S MOTION TO VACATE THE CONVICTION WAS PROPERLY GRANTED AND THE INDICTMENT DISMISSED (FIRST DEPT).

The First Department determined defense counsel was ineffective when he filed a speedy trial motion 10 days before the speedy trial clock would have run out. The indictment was dismissed in this CPL 440.10 proceeding:

Counsel filed a speedy trial motion, alleging well over the required threshold of 183 days of chargeable time. However, because of counsel’s miscalculations, these allegations included substantial periods that were not in fact chargeable. As a result, the court deciding the speedy trial motion found that only 174 days were chargeable. However, if counsel had waited only 10 more days to file the motion, the circumstances of the case establish that this additional period would unquestionably have been charged to the People, as counsel was aware. Thus, the threshold would have been exceeded, and the court would have been required to grant the speedy trial motion. Instead, the filing of the premature motion stopped the clock and rendered the People’s additional unreadiness excludable.

The CPL 440.10 hearing record establishes that counsel had no strategic reason for filing the speedy trial motion in the form and at the time he did, and that his handling of the motion was objectively unreasonable. Furthermore, the prejudice prong of a single-error ineffectiveness claim was satisfied, because “[i]t is well settled that a failure of counsel to assert a meritorious speedy trial claim is, by itself, a sufficiently egregious error to render a defendant’s representation ineffective” … . People v Stewart, 2019 NY Slip Op 03142, First Dept 4-25-19

 

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COUNTY JAIL CORRECTIONS OFFICER ENTITLED TO WORKERS’ COMPENSATION BENEFITS FOR PTSD AND DEPRESSION RESULTING FROM AN INMATE’S SPITTING ON HIM AND THREATENING TO KILL HIS FAMILY (THIRD DEPT).

The Third Department determined claimant’s appeal was rendered moot because the Workers’ Compensation Board rescinded its prior rulings and found claimant, a county jail corrections officer, could recover for PTSD and depression resulting from an inmate’s spitting on him (saliva exposure) and threatening to kill claimant’s family:

… [T]he Board panel …found … that claimant did not sustain a physical injury within the meaning of Workers’ Compensation Law § 2 (7) and, further, that the recent amendment to Workers’ Compensation Law § 10 (3) (b) did not apply to claimant; hence, claimant was “required to demonstrate that the stress encountered was greater than that which occurred in the normal work environment of a correction[] officer” … . On that latter point, the Board panel credited claimant’s testimony that the inmate in question “was more dangerous than the average inmate” and that “exposure to bodily fluids . . . was not a regular occurrence for [claimant] at work” … . Accordingly, the Board panel found that claimant experienced stress greater than similarly situated correction officers, that “establishment of the claim for . . . psychological conditions [was] supported by the credible evidence in the record” and that “the claim [was] properly amended to include PTSD, major depressive disorder[] and panic disorder’ … . Matter of Carey v Westchester County Dept. of Corr., 2019 NY Slip Op 03116, Third Dept 4-25-19

 

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SUPERIOR COURT INFORMATION DID NOT INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, reversing County Court, determined the superior court information (SCI) to which defendant pled guilty was invalid because it did not include the approximate time of the offense. The guilty plea was vacated:

Defendant contends that the waiver of indictment was deficient, requiring that the guilty plea be vacated, because there was not strict compliance with the statutory mandates of CPL 195.20. Specifically, defendant asserts that the superior court information (hereinafter SCI) does not set forth the “approximate time” of the offense nor does the record establish that the waiver of indictment was signed by defendant in open court … . With regard to the approximate time of the offense, such information, which is required by the plain language of the statute, was omitted from the SCI . Furthermore, this is not “a situation where the time of the offense is unknown or, perhaps, unknowable” so as to excuse the absence…  of such information … . As we have previously noted, “[a]ny other interpretation would render the statute’s language requiring the ‘approximate time’ superfluous or redundant” … . Inasmuch as defendant’s waiver of indictment was not procured in strict compliance with the statutory provisions, it is invalid, thereby requiring vacatur of his guilty plea and dismissal of the SCI … . People v Edwards, 2019 NY Slip Op 03108, Third Dept 4-25-19

 

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CLAIMANT’S BEHAVIOR, ALLEGED TO HAVE CONSTITUTED HARASSMENT AND INSUBORDINATION, DID NOT RISE TO THE LEVEL OF DISQUALIFYING MISCONDUCT, CLAIMANT WAS ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant’s behavior did not rise to the level of misconduct which would disqualify him from receiving unemployment insurance benefits. Claimant had objected to the way he was treated by his supervisor after claimant had been accused by a coworker of sending a harassing text message:

During the course of his employment as a design assistant for a clothing manufacturer, claimant sent a text message to a coworker. The coworker forwarded this message to the attention of claimant’s supervisor, complaining that it was harassment. On the following business day, the supervisor verbally reprimanded claimant for sending the message. Claimant disagreed with the discipline and was advised that he could come back to discuss the matter further if he wished. Later that day, claimant approached the supervisor and demanded to see the text message. Using a tone that the supervisor described as “angry,” “hostile” and “aggressive,” claimant disputed the supervisor’s position that the message was work-related and told her how he believed she should have handled the matter. Another employee overheard the discussion and described claimant’s voice as “disrespectful” and “increasing [in] volume.” The employer’s co-owner subsequently terminated claimant’s employment, concluding that he had violated the employer’s anti-harassment policy by sending the message and had been insubordinate to the supervisor. …

Although the employer’s witnesses testified that claimant sent a harassing message and spoke loudly and rudely to the supervisor, they also testified that he had not previously engaged in insubordinate behavior and had not received prior warnings … . The Board further noted that claimant did not make abusive statements, refuse to follow the supervisor’s directions or take other actions that had previously been held to constitute disqualifying misconduct … . Matter of Salcedo (E.H. Mfg. Inc.–Commissioner of Labor), 2019 NY Slip Op 03125, Third Dept 4-25-19

 

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