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WHERE A DEFENDANT HAS BEEN RESENTENCED BECAUSE THE ORIGINAL SENTENCE WAS ILLEGAL, THE DATE OF THE ORIGINAL SENTENCE CONTROLS FOR DETERMINATION OF PREDICATE FELONY STATUS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a three-judge dissent, reversing the Appellate Division, determined that, where a defendant has been resentenced because the original sentence was illegal, the date of the original sentence, not the subsequent resentence, controls for the purpose of determining predicate felony status:

… [D]efendant’s proffered interpretation of Penal Law § 70.06 is not supported by the plain language of that provision, its well-established legislative purpose, or our precedent. Therefore, because the original sentences on defendant’s 1989 convictions were imposed before commission of the present felony, the sequentiality requirement of the predicate felony statute was satisfied, and defendant was properly sentenced as a second felony offender. People v Thomas, 2019 NY Slip Op 01167, CtApp 2-19-19

 

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COURT RECORDS RELATED TO PROCEEDINGS FOR THE COMMITMENT AND RETENTION OF DANGEROUS MENTALLY ILL ACQUITTEES ARE NOT CLINICAL RECORDS AND THEREFORE ARE NOT SUBJECT TO THE AUTOMATIC SEALING REQUIREMENT IN THE MENTAL HYGIENE LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that the records of Criminal Procedure Law 330.20 proceedings related to the commitment and retention of insanity acquittees (suffering from a dangerous mental disorder) are not “clinical records” within the meaning of the Mental Hygiene Law and, therefore, are not subject to the automatic sealing requirement:

The plain text of Mental Hygiene Law § 33.13 … cuts against defendant’s interpretation that the term “clinical record” includes the entire record of court proceedings or dictates to a court how to manage its own records. * * *

Throughout our history, “the institutional value” of open judicial proceedings has fostered “an appearance of fairness” … and ensured “the public interest in having proceedings of courts of justice public, not secret, for the greater security thus given for the proper administration of justice” … . Interpreting Mental Hygiene Law § 33.13, despite the absence of any supporting statutory language, to provide a blanket sealing requirement of an entire court record that is automatically conferred disregards that tradition. In balancing the privacy rights of a defendant with the public’s right to know how dangerous mentally ill acquittees are managed by the courts, the legislature eschewed an automatic sealing requirement of the court record. We refuse to disturb that balance today. Here, defendant demanded an automatic seal in stark contrast to a case specific analysis that demands a court to find good cause sufficient to rebut the legislative presumption of public access for any sealing, in part or whole, upon due consideration of the competing and compelling interests of the public and the parties … . Matter of James Q. (Commissioner of the Off. for People with Dev. Disabilities), 2019 NY Slip Op 01166, CtApp 2-19-19

 

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ACTIONS TAKEN BY A NEW YORK ATTORNEY WHO IS NOT IN COMPLIANCE JUDICIARY LAW 470, WHICH REQUIRES AN OFFICE IN NEW YORK, ARE NOT A NULLITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined that actions taken by an attorney who is admitted to practice in New York but is not in compliance with New York office requirement are not a nullity:

We … hold that a violation of Judiciary Law § 470 [requiring a New York office] does not render the actions taken by the attorney involved a nullity. Instead, the party may cure the section 470 violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel … . Where further relief is warranted, the trial court has discretion to consider any resulting prejudice and fashion an appropriate remedy  and the individual attorney may face disciplinary action for failure to comply with the statute … . This approach ensures that violations are appropriately addressed without disproportionately punishing an unwitting client for an attorney’s failure to comply with section 470. Arrowhead Capital Fin., Ltd. v Cheyne Specialty Fin. Fund L.P., 2019 NY Slip Op 01124, CtApp 2-14-19

 

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MENTAL HEALTH LEGAL SERVICES DOES NOT HAVE STANDING TO SEEK A WRIT OF MANDAMUS TO COMPEL A HOSPITAL TO COMPLY WITH THE MENTAL HYGIENE LAW PROCEDURE WHEN A PATIENT REQUESTS AN ADMISSION OR RETENTION HEARING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissenting opinion, reversing the Appellate Division, determined Mental Hygiene Legal Services did not have standing to seek a writ of mandamus to compel a hospital to comply with Mental Hygiene Law 9.31 (b) “which sets forth the procedure that must be followed after a patient requests an admission or retention hearing:

MHLS alleges that, in early 2016, it “began to notice problems with the medical charts offered into evidence by BPC [Bronx Psychiatric Center]” because “documents contained in the chart had been added or removed just prior to the hearing.” MHLS filed this CPLR article 78 petition in the nature of mandamus, in its own name — and separate from any specific client or proceeding — seeking an order compelling BPC to provide copies of a patient’s entire clinical chart when it provides notice of a request for an admission or retention hearing, arguing the clinical chart is part of the “record of the patient” under Mental Hygiene Law § 9.31. Matter of Mental Hygiene Legal Serv. v Daniels, 2019 NY Slip Op 01123, CtApp 2-14-19

 

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OFFICE OF MENTAL HEALTH IS NOT REQUIRED TO ALLOW COUNSEL FROM MENTAL HEALTH LEGAL SERVICES TO PARTICIPATE IN TREATMENT PLANNING FOR A SEX OFFENDER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissenting opinion, determined that a Mental Hygiene Legal Services (MHLS) attorney need not be granted permission to attend a treatment planning session for a client in the Sex Offender Treatment Program:

We hold that MHLS counsel is not entitled to be given an interview and an opportunity to participate in treatment planning simply by virtue of an attorney-client relationship with an article 10 respondent. * * *

… [T]he statutory language of Mental Hygiene Law §§ 10.10 (b) and 29.13 (b), as well as the relevant legislative history, support the conclusion that MHLS counsel was not intended to be included, as a matter of law, within the terms “authorized representative” or “significant individual.” Thus, OMH [Office of Mental Health] is not required, upon the respondent’s request, to provide an interview and an opportunity to participate in treatment planning to MHLS counsel who has only a professional, attorney-client relationship with an article 10 respondent. However, as OMH concedes, a facility has the discretion to permit MHLS counsel to participate in treatment planning and, in a particular case, it is possible that counsel could develop and demonstrate a sufficient personal relationship with a patient such that counsel would qualify as a “significant individual . . . otherwise concerned with the welfare of the patient,” entitled to participate therein. Matter of Mental Hygiene Legal Serv. v Sullivan, 2019 NY Slip Op 01122, CtApp 2-14-19

 

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COMMON LAW INDEMNIFICATION ONLY AVAILABLE TO A PARTY WHO IS VICARIOUSLY LIABLE, AS OPPOSED TO LIABLE FOR THE PARTY’S OWN NEGLIGENCE (FIRST DEPT).

The First Department noted that a party cannot obtain common-law indemnification unless it is vicariously liable:

The court properly granted the motions … for summary judgment dismissing the common-law indemnification and contribution claims against them. “[A] party cannot obtain common-law indemnification unless it has been held to be vicariously liable without proof of any negligence . . . on its own part” … , and the only claims ever asserted against defendant [in this case] sought to hold it liable for its own negligence rather than vicariously liable … . Ramirez v Almah, LLC, 2019 NY Slip Op 01153 [169 AD3d 508], First Dept 2-14-19

 

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FAILURE TO GRANT AN ADJOURNMENT TO ALLOW DEFENSE COUNSEL, WHO HAD BEEN ACTING IN A LIMITED ADVISORY CAPACITY, TO ADEQUATELY PREPARE FOR A SUPPRESSION HEARING DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL, NEW SUPPRESSION HEARING ORDERED, APPEAL HELD IN ABEYANCE (SECOND DEPT).

The Second Department held the appeal in abeyance to allow a new suppression hearing. defense counsel. Defense counsel was acting in a limited advisory capacity when he was asked by the judge to conduct the suppression hearing. Defendant asked for an adjournment to allow counsel to review the voluminous discovery materials, but the request was denied. The Second Department held that the denial of the adjournment deprived defendant of his right to counsel:

“[T]he right of a defendant to be represented by an attorney means more than just having a person with a law degree nominally represent him [or her] upon a trial and ask questions” … . “[T]he right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense and who is familiar with, and able to employ . . . basic principles of criminal law and procedure” … .

Here, the Supreme Court improvidently exercised its discretion in denying the defendant’s request for an adjournment to give his attorney more time to prepare for the suppression hearing. Prior to the hearing, counsel acted in the limited capacity of advisor since the defendant wished to proceed pro se. However, at the court’s urging, counsel agreed to represent the defendant at the suppression hearing but expressed his concern that he had not had an adequate opportunity to review voluminous discovery materials … . People v Costan, 2019 NY Slip Op 01089, Second Dept 2-13-19

 

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ATTORNEY GENERAL MAY IMPOSE CIVIL PENALTIES FOR VIOLATION OF THE TIDAL WETLANDS ACT AND THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION WAS ENTITLED TO SUMMARY JUDGMENT ON ITS ACTION TO COMPEL DEFENDANT TO SUBMIT A RESTORATION PLAN AFTER DEFENDANT, CLEARED AND FILLED WETLANDS AND CONSTRUCTED A BULKHEAD AND FENCE ON WETLANDS (SECOND DEPT).

The Second Department, reversing Supreme that the attorney general (AG) can impose civil penalties pursuant to the Environmental Conservation La (ECL fro violations of Tidal Wetlands Act and the Department of Environmental Conservation was entitle to summary on its action to impose penalties and compel defendant to submit a restoration plan:

… [P]laintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability on the fourth cause of action in the amended complaint, which sought to recover civil penalties pursuant to ECL 71-2505 for the defendant’s post-February 1, 2008, violations of the Tidal Wetlands Act, and to compel the defendant to submit a restoration plan addressing those violations. In support of their motion, the plaintiffs submitted evidence demonstrating, inter alia, that between 2011 and 2012, the defendant, without a permit, cleared wetland vegetation and placed fill, constructed a bulkhead in delineated state tidal wetlands and in the tidal creek, and installed a 900-foot long fence in tidal wetland adjacent areas in violation of ECL 25-0401… . In opposition, the defendant failed to raise a triable issue of fact … . New York State Dept. of Envtl. Conservation v Segreto, 2019 NY Slip Op 01084, Second Dept 2-13-19

 

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CHILD’S MOTION FOR FINDINGS TO ALLOW HIM TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) SHOULD HAVE BEEN GRANTED, THERE WAS EVIDENCE THE CHILD WOULD BE KILLED UPON RETURN TO EL SALVADOR (SECOND DEPT).

The Second Department, reversing Family Court, determined that the motion for an order making the findings necessary for the child to petition for special immigrant juvenile status (SIJS) should have been granted:

Based upon our independent factual review, the record supports a finding that reunification of the child with the father is not a viable option due to parental neglect… . The record demonstrates that when the child lived with the mother and the father in El Salvador, the father would physically mistreat the mother in the presence of the child by hitting her with objects such as a book and shoes, causing her bruising, and that, when the child attempted to defend the mother, the father would hit the child. The child also averred in his affidavit that “[w]hen [the father] would get angry, which was often, he became very violent toward me, yelling at me and punching me,” and the mother indicated that she had to send the child to live with his maternal grandmother in El Salvador because she was afraid of what the father would do to the child. The record also demonstrates that the father had provided no financial support for the child since the child was 10 years old. Thus, the father’s conduct, including acts of domestic violence perpetrated in the presence of the child, constituted neglect … , which established that the child’s reunification with the father is not viable … .

The record also does not support the Family Court’s determination that the child failed to show that it would not be in his best interests to return to El Salvador. The child testified that gang members in El Salvador tried to recruit him, but he refused to join, that after his refusal to join, the gang members threatened and assaulted him multiple times, “hurt me[ ] very bad,” “left me on the streets after they beat me up,” and would have killed him on one occasion if not for a police patrol “coming by that moment,” that he was afraid to go outside after the incident when he was almost killed, and that “if I go back [to El Salvador] they will kill me” … . Matter of Lucas F.V. (Jose N.F.), 2019 NY Slip Op 01079, Second Dept 2-13-19

 

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THE STATUTE OF LIMITATIONS DID NOT TOLL WHILE DEFENDANT WAS OUT OF STATE BECAUSE THE DEFENDANT COULD HAVE BEEN SERVED OUT OF STATE, PLAINTIFFS’ ACTION WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the statute of limitations did not toll while defendant was out of state and the action was therefore time-barred:

The plaintiffs’ contention that the action was timely because they were entitled to the benefit of the tolling provision of CPLR 207 based on the defendant’s alleged absence from the state did not raise a question of fact. Under that statute, as relevant here, when a defendant leaves the state after an action has accrued, and is continually absent from the state for at least four months, the time of the defendant’s absence is not included in the time during which the action must be commenced. This tolling provision, however, does not apply “while jurisdiction over the person of the defendant can be obtained without personal delivery of the summons to the defendant within the state” (CPLR 207[3] …). In other words, the toll will not apply if there is a means by which the defendant may be served notwithstanding his or her absence from the state … . Here, even during his alleged absence from New York State, the defendant was subject to service of process (see CPLR 302[a][2]; 308[5]; 313 …). The plaintiffs did not submit evidence establishing that the defendant was attempting to evade service of process by, for example, living secretly in a foreign country, such that no means of service of process on him was available … . MP v Davidsohn, 2019 NY Slip Op 01069, Second Dept 2-13-19

 

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