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BECAUSE THE INSTANT CONVICTION WAS FOR A CLASS A FELONY, SUPREME COURT WAS NOT AUTHORIZED TO SENTENCE DEFENDANT AS A SECOND FELONY OFFENDER (SECOND DEPT).

The Second Department, in affirming defendant’s conviction and sentence, noted that defendant should not have been sentenced as a second felony offender because the instant conviction was for a class A felony:

… [T]he Supreme Court was not authorized to adjudicate the defendant a second violent felony offender since the instant conviction was for a class A felony rather than a class B, C, D, or E felony (see Penal Law §§ 70.02[1]; 70.04[1][a]). Therefore, we vacate the defendant’s adjudication as a second violent felony offender. However, since the statutory sentencing parameters for a second violent felony offender do not include any specifications as to proper sentences for a class A felony because that crime is more serious than the crimes specified in those parameters, the error could not have affected the sentence imposed to the defendant’s detriment (see Penal Law § 70.04[1][a]… ). Therefore, the term of imprisonment imposed upon the defendant’s conviction of a class A felony should not be disturbed. People v Young, 2019 NY Slip Op 00152, Second Dept 1-9-19

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THERE EXISTS A QUESTION OF FACT WHETHER DEFENDANT’S FAILURE TO APPEAR AT THE LAW DAY CLOSING WAS WILLFUL WITHIN THE MEANING OF THE REAL ESTATE CONTRACT, PLAINTIFFS’ MOTION SEEKING SUMMARY JUDGMENT ON THE ACTION TO RETAIN THE DOWN PAYMENT PROPERLY DENIED, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SEEKING THE RETURN OF THE DOWN PAYMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that defendant’s motion for summary judgment in plaintiffs’ action to retain the defendant’s down payment because defendant did not appear at the real estate closing should not have been granted. Although plaintiffs demonstrated they were ready and willing close on the time-of–the-essence closing date, defendant raised a question of fact whether the failure to appear was “willful” within the meaning of the real estate contract. Defendant submitted evidence his application for credit in connection with a mortgage on the property had been declined. Plaintiff’s motion for summary judgment was properly denied. But defendant’s motion for summary judgment seeking return of his down payment should not have been granted:

“The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent” … . The best evidence of the parties’ intent is their own writing… . A written agreement that is complete, clear, and unambiguous on its face is to be enforced according to the plain meaning of its terms … . Here, the contract provided that a party would be considered in breach if a default was willful, and that the plaintiffs could retain the down payment as liquidated damages only if the defendant “willfully” defaulted under the contract. The defendant submitted a copy of a “Statement of Credit Denial” from his lender which indicated that his application for an extension or renewal of credit with respect to a mortgage on the property had been declined. Consequently, a triable issue of fact existed as to whether the defendant had a lawful excuse for defaulting given the denial of his application to extend or renew his mortgage commitment, or whether he willfully defaulted.

Accordingly, we agree with the Supreme Court’s determination denying the plaintiffs’ motion for summary judgment on the complaint.

However, the Supreme Court should not have, upon searching the record, awarded summary judgment to the defendant dismissing the complaint and directing the return of the down payment to the defendant. A buyer who defaults on a real estate contract without ” lawful excuse'” cannot recover the down payment amount, “at least where . . . that down payment represents 10% or less of the contract price” … . Since a triable issue of fact existed as to whether the defendant’s failure to close was willful, the Supreme Court should not have determined, at this juncture, that he was entitled to the return of his down payment. Goetz v Trinidad, 2019 NY Slip Op 00099, Second Dept 1-9-19

 

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BECAUSE THE COURT DID NOT IMPOSE CONDITIONS ON THE PLEAS AND SENTENCING COMMITMENTS, THE SENTENCE SHOULD NOT HAVE BEEN ENHANCED BASED ON THE PURPORTED VIOLATIONS OF CERTAIN CONDITIONS, INCLUDING THE DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE APPELLATE COURT CONSIDERED IT IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department determined the sentencing court should not have imposed an enhanced sentence (consecutive instead of concurrent) because defendant did not appear at sentencing because the court had not imposed his appearance as a condition for the pleas and sentencing commitments. Although the issue was not preserved, the court considered the appeal in the interest of justice:

The defendant entered pleas of guilty under three separate indictments. He was promised that the sentences imposed would run concurrently. The defendant did not appear in court on the scheduled sentencing date. Subsequently, in rendering the judgments of conviction, the Supreme Court directed, inter alia, the sentence imposed on the second judgment to run consecutively to the sentence imposed on the first judgment.  …

… [W]e exercise our interest of justice jurisdiction to vacate the sentences. Since the record does not establish that the Supreme Court imposed as a condition on the pleas and sentencing commitments that the defendant return on the scheduled sentencing date, the court should not have imposed enhanced sentences based on the defendant’s violation of this purported condition … . To the extent that the court also based its imposition of enhanced sentences on the defendant having violated certain other purported conditions, it likewise erred, since it had not imposed these conditions on the pleas and sentencing commitments. People v Andre, 2019 NY Slip Op 00136, Second Dept 1-9-19

 

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COURT NEVER RULED ON WHETHER THE PROSECUTOR’S INITIAL REASON FOR EXCLUDING AN AFRICAN-AMERICAN POTENTIAL JUROR WAS A CREDIBLE RACE-NEUTRAL REASON, THE REASONS OFFERED AFTER THE JUROR WAS QUESTIONED FURTHER SHOULD NOT HAVE BEEN CONSIDERED, NEW TRIAL ORDERED (SECOND DEPT

The Second Department, reversing defendant’s conviction, determined the trial court did not handle the Batson challenge to the prosecutor’s striking an African American juror correctly. When asked about her reasons, the prosecutor said the potential juror was too young to sit on a murder trial. Upon further questioning the potential juror had difficulty understanding and answering questions. But the court never ruled whether the prosecutor’s initial reason for excluding the potential juror, his youth, was a credible race-neutral explanation:

New York courts apply the three-step test of Batson v Kentucky (476 US 79) to determine whether a party has used peremptory challenges to exclude potential jurors for an impermissible discriminatory reason… . “The first step requires that the moving party make a prima facie showing of discrimination in the exercise of peremptory challenges; the second step shifts the burden to the nonmoving party to provide race-neutral reasons for each juror being challenged; and the third step requires the court to make a factual determination as to whether the race-neutral reasons are merely a pretext for discrimination” … .

… [T]he Supreme Court failed in its duty to determine whether the prosecutor’s race-neutral explanations were credible (see … United States v Taylor, 636 F3d 901, 905 [7th Cir] [“when ruling on a Batson challenge, the trial court should consider only the reasons initially given to support the challenged strike, not additional reasons offered after the fact”]). People v Alexander, 2019 NY Slip Op 00135, Second Dept 1-9-19

 

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TRIAL JUDGE SHOULD HAVE CONDUCTED AN INQUIRY AFTER RECEIVING A NOTE INDICATING THAT A JUROR COULD NOT CONTINUE, INSTEAD THE JUDGE REPLACED THE JUROR WITH AN ALTERNATE WITHOUT AN INQUIRY, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial, determined the trial court in this medical malpractice action should have conducted an inquiry before replacing a juror with an alternate:

In 2013, CPLR 4106 was amended to provide that a trial court may discharge a regular juror and replace that juror with an alternate juror, even after deliberations have begun, if the juror has “become[ ] unable to perform the duties of a juror” (CPLR 4106 … ). In determining whether discharge and replacement of a juror is appropriate, a trial court must, after receiving notice that a juror may not be able to perform his or her duty, make whatever inquiry is reasonably necessary to determine whether the juror should be discharged and replaced with an alternate juror … .

In this medical malpractice action, the Supreme Court received a note during deliberations that “a juror cannot come to a fair decision due to emotional distress.” The court, however, refused to conduct any inquiry as to the nature of the juror’s difficulty, and refused even to speak to the juror individually. Instead, over objection, it excused the juror and seated an alternate. The court’s failure to make adequate inquiry was error, requiring a new trial … . Garbie v Ahmad, 2019 NY Slip Op 00098, Second Dept 1-9-19

 

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ALLOCUTION CAST DOUBT ABOUT GUILT IN THIS JUVENILE DELINQUENCY PROCEEDING, AN EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL (SECOND DEPT).

The Second Department, reversing Family Court, determined that the plea allocution was defective in this juvenile delinquency proceeding. The allocution did not support the elements of the charged offense (grand larceny fourth degree if committed by an adult) and the juvenile’s foster care planner was not questioned about the offense, a defect which cannot be waived. Although no motion to withdraw was made, the allocution cast significant doubt about guilt which constitutes an exception to the the preservation requirement for appeal:

The appellant did not move to withdraw his admission on the grounds raised on appeal … . However, this is one of the ” rare case[s] . . . where the [appellant’s] recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the [appellant’s] guilt,’ [which] fall[s] into the narrow exception to the preservation requirement”… . In addition, the appellant was not required to preserve his contention that the Family Court erred in failing to obtain an allocution from the foster care case planner, since the statutory requirement of such an allocution may not be waived … . * * *

The Family Court did not elicit any additional details concerning the incident in order to clarify how the appellant came to be in possession of the $5 such that it could be concluded that he took it from the boy’s person within the meaning of Penal Law § 155.30(5). Thus, the court “did not elicit a sufficient factual basis to support [the appellant’s] admission'” … .

In addition, the appellant’s admission was defective since his foster care case planner was present, but the Family Court failed to ascertain through allocution of the foster care case planner, as a person legally responsible for the appellant’s care, “that (a) [the appellant] committed the act or acts to which he [was] entering an admission, (b) he [was] voluntarily waiving his right to a fact-finding hearing, and (c) he [was] aware of the possible specific dispositional orders” … . Matter of Richard S., 2019 NY Slip Op 00130, Second Dept 1-9-19

 

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FATHER WAS 40 MINUTES LATE FOR A HEARING, FATHER’S PETITION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition should not have been dismissed because he was 40 minutes late for a hearing:

… [T]he father explained that he had miscalendared the time of the hearing. Although we are sensitive to the Family Court’s interest in adhering to its time-specific calendaring process, we find that, in light of the relatively short delay, the proceedings that had already taken place on the petition, the absence of prejudice to the mother, and the public policy in favor of resolving cases on the merits, the court improvidently exercised its discretion in denying the father’s objections … . Moreover, the father showed that he had a potentially meritorious petition … . Matter of Pecoraro v Ferraro, 2019 NY Slip Op 00129, Second Dept 1-9-19

 

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CLAIMANT ENTITLED TO COMPENSATION BASED UPON THE VALUE OF THE LAND BEFORE IT WAS DESIGNATED PROTECTED WETLANDS WHICH COULD NOT BE DEVELOPED (SECOND DEPT)

The Second Department modified (reduced) the award for condemnation of regulated land but upheld the Supreme Court’s legal reasoning. Claimant owned vacant land in a commercial zone. After claimant acquired title New York City took title by eminent domain and designated the land as protected wetlands. Claimant sought the difference in value of the land before and after the wetlands regulation. The Second Department held that claimant was entitled to that relief but accepted the city’s pre-regulation value of the land, which was substantially less than the claimant’s valuation (which had been accepted by Supreme Court):

As the City does not dispute, the claimant established that there was a reasonable probability that the imposition of the wetlands regulations on the property would be found to constitute a taking, inasmuch as the parties agreed that the imposition of the regulations diminished the value of the property by approximately 95% and that there was virtually no chance that the New York State Department of Environmental Conservation would issue a permit allowing the property to be developed … .

Accordingly, the claimant established its entitlement to an increment … .

“The increment above the regulated value of the property that must be added to the regulated value of the property is a percentage that represents the premium a reasonable buyer would pay for the probability of a successful judicial determination that the regulations were confiscatory” . “When adding an increment to the value of vacant land to reflect its development potential, the specific increment which is selected and…  applied must be based on sufficient evidence and be satisfactorily explained”  … . Matter of New Cr. Bluebelt Phase 3, Staten Is. Land Corp. (City of New York), 2019 NY Slip Op 00128, Second Dept 1-9-19

 

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DOCUMENTS SUBMITTED BY FANNIE MAE IN THIS FORECLOSURE ACTION DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, FANNIE MAE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence submitted by the plaintiff (Fannie Mae) in this foreclosure action did not meet the requirements of the business records exception to the hearsay rule and, therefore, plaintiff’s motion for summary judgment should not have been granted:

In support of those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, Fannie Mae submitted affidavits of foreclosure specialists employed by Seterus, Inc., its loan servicer. The foreclosure specialists attested that they were personally familiar with the record-keeping practices and procedures of Seterus, Inc., but failed to lay a proper foundation for the admission of records concerning the defendants’ payment history and default. Accordingly, Fannie Mae failed to demonstrate that the records relied upon in the affidavits were admissible under the business records exception to the hearsay rule (see CPLR 4518[a] … ). Since Fannie Mae’s motion was based on evidence that was not in admissible form … , Fannie Mae failed to establish its prima facie entitlement to judgment as a matter of law, and those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference should have been denied, regardless of the sufficiency of the defendants’ papers in opposition … . Federal Natl. Mtge. Assn. v Marlin, 2019 NY Slip Op 00095, Second Dept 1-9-19

 

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EVEN THOUGH FATHER PAID WHAT HE OWED WHEN MOTHER FILED A PETITION FOR UNPAID CHILD SUPPORT, MOTHER WAS ENTITLED TO ATTORNEY’S FEES (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court improvidently exercised its discretion when it denied mother’s request for attorney’s fees. Father was in arrears but paid what was owed after mother filed a petition for the unpaid child support. Mother was entitled to attorney’s fees despite the fact that father withheld payment because of a dispute about cell phone bills and college expenses:

Pursuant to Family Court Act § 438(a), a court, in its discretion, may award reasonable attorneys’ fees in an enforcement proceeding. The denial of an award of attorneys’ fees to the mother in this case was an improvident exercise of discretion. The father paid the sum demanded for arrears in satisfying his child support obligations, but only after the mother was forced to expend attorneys’ fees to commence an enforcement proceeding. The fact that the father was engaged in a dispute over whether he should be credited for payments for cell phone expenses and college expenses paid before the entry of the parties’ judgment of divorce did not authorize him to engage in self-help by withholding child support payments that he ultimately did not dispute were due and owing. Matter of Mensch v Mensch, 2019 NY Slip Op 00126, Second Dept 1-9-19

 

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