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ON APPEAL, THE ATTORNEY FOR THE CHILD DID NOT FULFILL HIS OBLIGATION TO CONSULT WITH THE CHILDREN TO DETERMINE THEIR WISHES OR TO ADEQUATELY EXPLAIN WHY CONSULTATION WAS NOT POSSIBLE; HE WAS RELIEVED OF HIS ASSIGNMENT (THIRD DEPT).

The Third Department, relieving the attorney for the child (AFC) of responsibility for the appeal, determined the AFC did not fulfill his responsibilities under the Rules of the Chief Judge (22 NYCRR 7.2):

The Rules of the Chief Judge require that an AFC in a custody or visitation proceeding “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]; see 22 NYCRR 7.2 [c]), and further provide that, “[i]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child’s best interests” … . The Rules establish only two circumstances in which an AFC may adopt a position that does not reflect the child’s wishes — specifically, when he or she “is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child” … . …

The AFC here wholly failed to fulfill the obligations imposed by these provisions upon this appeal. The only stated basis for his determination to advocate for the children’s best interests rather than for their wishes was their ages. However, it was the AFC’s obligation to “consult with and advise the child[ren] to the extent of and in a manner consistent with [their] capacities” … . At 10, the older child was certainly old enough to be capable of expressing her wishes, and whether the younger child, at 6, had the capacity to do so was not solely dependent upon her calendar age, but also upon such individual considerations as her level of maturity and verbal abilities … . … Here, the AFC’s brief is devoid of any indication of the children’s wishes, with no reference to 22 NYCRR 7.2 or to the analysis that this rule requires an AFC to undertake before advocating for a position that does not express the child’s wishes … . …

Additionally, although the record reveals that the AFC met with the children during the Family Court proceeding, it does not appear that he met or spoke with them again during the appeal … . Matter of Jennifer VV. v Lawrence WW., 2020 NY Slip Op 02136, Third Dept 4-2-20

 

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BECAUSE THE DEFENDANT WAS MADE AWARE OF THE POSSIBILITY OF DEPORTATION MONTHS BEFORE HE PLED GUILTY, HIS ARGUMENT THAT THE TRIAL JUDGE DID NOT INFORM HIM OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA WAS SUBJECT TO THE PRESERVATION REQUIREMENT; THE FAILURE TO PRESERVE THE ERROR PRECLUDED APPEAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a three-judge concurrence, determined defendant’s argument that the trial judge failed to inform him of the deportation consequences of his plea to a felony was subject to the preservation requirement. The defendant’s failure to preserve the error precluded appeal:

“[D]ue process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony” … . However, before we may consider whether a trial court fulfilled that obligation, we must determine whether a defendant preserved the claim as a matter of law for our review or whether an exception to the preservation doctrine applies … . Here, service on defendant, in open court and months before the plea proceedings, of a “Notice of Immigration Consequences” form provided him with a reasonable opportunity to object to the plea court’s failure to advise him of the potential deportation consequences of his plea, making the narrow exception to the preservation doctrine unavailable to him … . * * *

“Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea on the same grounds subsequently alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10” (Peque, 22 NY3d at 182). While reiterating this rule in Peque, we also acknowledged that “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required” (id.). This exception to the preservation requirement, however, remains narrow … . * * *

The very first sentence of the Notice explicitly told defendant that “a plea of guilty to any offense” could “subject[] [him] to a risk that adverse consequences w[ould] be imposed on [him] by the United States immigration authorities, including, but not limited to, removal from the United States . . . .” It further noted that, among other things, a conviction for “burglary . . . or any other theft-related offense . . . for which a sentence of one year or more is imposed” would be deportable.

Those unambiguous statements provided defendant with sufficient notice of possible immigration consequences, including deportation, of his conviction, giving him “a reasonable opportunity” to express concerns to the court — during either his plea or at sentencing — regarding those consequences … . People v Delorbe, 2020 NY Slip Op 02126, CtApp 3-31-20

 

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CRIMINALLY NEGLIGENT HOMICIDE CONVICTION ARISING FROM A TRAFFIC ACCIDENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, over a two-justice dissent, determined the conviction for criminally negligence homicide was against the weight of the evidence. The passenger in defendant’s car was killed when defendant’s car went off the road, apparently after colliding with other cars defendant was attempting to pass. The decision described all of the witness’s testimony in detail and concluded the conflicting testimony was not a sufficient basis for a conviction:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he [or she] causes the death of another person” (Penal Law § 125.10). A person acts with criminal negligence when “he [or she] fails to perceive a substantial and unjustifiable risk that such result will occur or that such [a] circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation” (Penal Law § 15.05[4]).

The defendant’s conduct must rise to a level of carelessness where its “seriousness would be apparent to anyone who shares the community’s . . . sense of right and wrong” … . Moreover, the conduct must create the risk, rather than simply not perceive the risk … .

In cases concerning charges of criminally negligent homicide arising out of automobile accidents involving excess rates of speed, “it takes some additional affirmative act by the defendant to transform speeding into dangerous speeding” … .

Here, the People failed to establish, beyond a reasonable doubt, that the defendant “fail[ed] to perceive a substantial and unjustifiable risk” (Penal Law § 15.05[4]) which caused the death of his passenger. People v Derival, 2020 NY Slip Op 02072, Second Dept 3-25-20

 

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BECAUSE FATHER’S ATTORNEY APPEARED IN THE CUSTODY PROCEEDING FATHER WAS NOT IN DEFAULT AND THE ORDER WAS THEREFORE APPEALABLE (FOURTH DEPT).

The Fourth Department determined father was not in default because his attorney appeared. Therefore the custody order was appealable:

Petitioner father commenced this proceeding seeking to modify a prior order of custody that, inter alia, awarded sole legal and physical custody of the subject child to respondent mother. The father now appeals from an order that, inter alia, continued sole legal and physical custody of the subject child with the mother.

We agree with the father that Family Court erred in entering the order upon his default based on his failure to appear in court. The record establishes that the father “was represented by counsel, and we have previously determined that, [w]here a party fails to appear [in court on a scheduled date] but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded” … . Matter of Williams v Richardson, 2020 NY Slip Op 01975, Fourth Dept 3-20-20

 

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FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POST RELEASE SUPERVISION REQUIRED VACATION OF THE SENTENCE; PRESERVATION OF THE ERROR NOT NECESSARY (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined defendant should have been informed his sentence would include a period of post release supervision (PRS). Because defendant was not put on notice, there was not need to preserve the issue for appeal:

At the plea proceeding, the court advised defendant that under the plea agreement, he would plead guilty to third-degree possession, a class B felony, and fifth-degree possession, a class D felony, with the understanding that if he complied with the terms of the plea agreement, he would be allowed to withdraw his plea to the B felony, and be sentenced, solely on the D felony, to 3½ years in prison, followed by two years of postrelease supervision. The court stated that if defendant violated the terms of the plea agreement, he could be sentenced to up to 15 years in prison on the B felony, but it neglected to state that any enhanced sentence would include a period of PRS. Defendant violated the plea agreement by, among other things, failing to appear for sentencing, and the court imposed an enhanced sentence that included two years of post release supervision concurrent on the B and D felonies.

The court was required to advise defendant that his potential sentence in the event he violated the plea conditions would include PRS, and it was also required to specify the length of the term of PRS … . The prosecutor’s brief reference to PRS immediately before sentencing was not the type of notice under People v Murray (15 NY3d 725 [2010]) that would require defendant to preserve the issue … . People v Jamison, 2020 NY Slip Op 01955, First Dept 3-19-20

 

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RECKLESS ENDANGERMENT CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; BECAUSE THE LEGAL SUFFICIENCY OF THE CONVICTION WAS NOT CHALLENGED IT MUST BE REVERSED NOT REDUCED BY THE APPELLATE COURT; GRAND LARCENY AND POSSESSION OF STOLEN PROPERTY CONVICTIONS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; INADEQUATE PROOF OF VALUE (FOURTH DEPT).

The Fourth Department reversed the reckless endangerment, grand larceny, possession of stolen property, and arson third degree convictions, and affirmed the murder, assault and arson second degree convictions. With respect to reckless endangerment first degree, the conviction was against the weight of the evidence and the appellate court could not reduce the conviction to a lesser included because defendant did not argue the evidence was legally insufficient. So the reckless endangerment conviction was reversed. The grand larceny/possession of stolen property convictions were not supported by adequate proof that the value of the stolen vehicle was more than $100. Arson third degree was dismissed as an inclusory concurrent count of arson in the second degree:

We agree with defendant … that the verdict finding him guilty of reckless endangerment in the first degree is against the weight of the evidence. “A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person” … . Count five of the indictment alleged that defendant recklessly engaged in conduct creating a grave risk of death to emergency responders when he intentionally started the fire. We agree with defendant that the verdict on that count is against the weight of the evidence because the People did not prove beyond a reasonable doubt that defendant acted with depraved indifference to human life when he set the fire … . Inasmuch as defendant is challenging only the weight of the evidence with respect to that count and does not challenge the legal sufficiency of the evidence with respect to that count, we cannot reduce the conviction to the lesser included offense of reckless endangerment in the second degree … . * * *

We further agree with defendant that the verdict finding him guilty of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree is against the weight of the evidence. With respect to each of those counts, the People were required to establish that the value of the stolen motor vehicle exceeded $100 … . It is well settled that a witness “must provide a basis of knowledge for his [or her] statement of value before it can be accepted as legally sufficient evidence of such value” … . “Conclusory statements and rough estimates of value are not sufficient” … . Although the monetary element of each crime is quite low, the People did not attempt to meet that threshold through the testimony of any witness. The testimony of a detective that the vehicle was “[d]efinitely worth over probably 10,000” did not satisfy the monetary element of either crime inasmuch as he provided no basis of knowledge for his statement of value. We therefore further modify the judgment by reversing those parts convicting defendant of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree and dismissing counts eight and nine of the indictment. People v Box, 2020 NY Slip Op 01813, Fourth Dept 3-13-20

 

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ALTHOUGH THE ASSAULT JURY INSTRUCTION DID NOT TRACK THE INDICTMENT, THE PEOPLE DID NOT OBJECT TO IT AND THE APPELLATE COURT MUST ASSESS THE SUFFICIENCY OF THE EVIDENCE ACCORDING TO THE INSTRUCTION; ASSESSED IN THE LIGHT OF THE JURY INSTRUCTION, THE ASSAULT COUNTS WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; THE CRIMINAL USE OF A FIREARM JURY INSTRUCTION DID NOT TRACK THE INDICTMENT, VIOLATING DEFENDANT’S RIGHT TO BE TRIED ONLY ON THE CRIMES CHARGED (FOURTH DEPT).

The Fourth Department, over a dissent, reversed the assault convictions, while affirming the murder conviction. The codefendant, intending to kill the decedent, also shot the two assault victims. Defendant was charged with murder and assault as an accomplice. Although the indictment charged assault under a transferred intent theory, the jury was instructed to find the defendant guilty of assault only if he intended injure the assault victims. Because, on appeal, the sufficiency of the evidence must be measured by the what the jury was instructed to consider, and because there was no evidence the defendant intended to injure the assault victims (as opposed to the decedent), the assault convictions were not supported by legally sufficient evidence. Although the defendant did not preserve the error by objecting to another inaccurate jury instruction which did not track the indictment, the criminal use of a firearm count was also dismissed because defendant’s right to the tried only on the crimes charged was violated:

“The doctrine of transferred intent’ serves to ensure that a person will be prosecuted for the crime he or she intended to commit even when, because of bad aim or some other lucky mistake,’ the intended target was not the actual victim” … . Although that theory may be applied to assault charges … , County Court’s jury instruction in this case mandated that the jury could convict defendant of the counts of assault in the first degree only if they found that he acted “with the intent to cause serious physical injury to” each assault victim, rather than instructing the jury that they could convict defendant of those crimes if they concluded that he intended to cause such injury to the deceased victim but the codefendant actually caused injury to the assault victims. The prosecution did not object to that charge, and it is well settled that, when reviewing a “jury’s guilty verdict, our review is limited to whether there was legally sufficient evidence . . . based on the court’s charge as given without exception” … . Inasmuch as there is insufficient evidence that defendant knew that either of the assault victims was present or that he intended any harm to either of them … , we conclude that the evidence is not legally sufficient with respect to the assault counts as charged to the jury. * * *

Although the court’s jury instructions did not specify assault in the first degree as the underlying crime for the criminal use of a firearm in the first degree count, and defendant did not object to the court’s instructions and thus did not preserve this issue for our review, we conclude that “preservation is not required” … , inasmuch as “defendant has a fundamental and nonwaivable right to be tried only on the crimes charged” in the indictment … . Therefore, based on the indictment, defendant could only be convicted of that charge if he committed assault in the first degree … . Thus, we conclude that, because “the conviction[s] of assault in the first degree cannot stand, the conviction of criminal use of a firearm in the first degree, which requires commission of [the] class B violent felony offense[ of assault in the first degree] while possessing a deadly weapon, also cannot stand” … . People v Spencer, 2020 NY Slip Op 01823, Fourth Dept 3-13-20

 

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FAMILY COURT DID NOT MAKE THE REQUISITE FINDINGS IN THIS CUSTODY MATTER WHERE A GRANDPARENT WAS SEEKING CUSTODY, MATTER REMITTED; ASSUMING FAMILY COURT’S ORDER WAS NOT FINAL, THE NOTICE OF APPEAL WAS DEEMED AN APPLICATION FOR LEAVE TO APPEAL; THE DISSENT ARGUED THE ORDER IS NOT APPEALABLE (FOURTH DEPT).

The Fourth Department, remitting the matter, over a dissent, determined Family Court should not have the requisite findings in this custody matter where a grandparent was seeking custody. Family Court had ordered the parties to stipulate to the custody arrangement noting that , if the parties do not agree, a hearing would be held. The dissent argued the order was not final and therefore was not appealable. The majority, assuming the order was not final, deemed the notice of appeal to be an application for leave to appeal:

With respect to the merits of the mother’s contentions regarding the court’s award of joint custody to the father and the maternal grandmother, we conclude that the court failed to set forth “those facts upon which the rights and liabilities of the parties depend” … , specifically its analysis of whether extraordinary circumstances existed to warrant an inquiry into whether an award of joint custody to the maternal grandmother was in the best interests of the child. ” It is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances . . . The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child’ ” … . Thus, we agree with the mother that the court erred in not determining whether extraordinary circumstances existed before awarding joint custody to the maternal grandmother. The maternal grandmother here had the burden of establishing extraordinary circumstances, which remains the case “whether the nonparent is seeking sole custody or joint custody with one of the parents” … .

We conclude that ” [t]he absence of the required findings precludes proper appellate review’ ” … . Matter of Steeno v Szydlowski, 2020 NY Slip Op 01808, Fourth Dept 3-13-20

 

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ALTHOUGH COUNTY COURT DID NOT ABUSE ITS DISCRETION, THE APPELLATE COURT EXERCISED ITS INTEREST OF JUSTICE JURISDICTION TO ADJUDICATE DEFENDANT A YOUTHFUL OFFENDER (FOURTH DEPT).

The Fourth Department, exercising its own interest of justice authority, determined defendant should be adjudicated a youthful offender, noting that County Court did not abuse its discretion:

… [D]efendant was 17 years old at the time of the crimes and had no prior criminal record, history of violence, or history of sex offending. Moreover, defendant has substantial cognitive limitations, learning disabilities, and other mental health issues, and he has accepted responsibility for his actions and expressed genuine remorse. Both the Probation Department and the reviewing psychologist recommended youthful offender treatment, and the record suggests that defendant might have the capacity for a productive and law-abiding future. The only factor weighing against affording defendant youthful offender treatment is the seriousness of the crimes.

On balance, although County Court did not abuse its discretion in denying defendant youthful offender status, we will exercise our discretion in the interest of justice to reverse the judgment, vacate the conviction, and adjudicate defendant a youthful offender … . People v Nicholas G., 2020 NY Slip Op 01828, Fourth Dept 3-13-20

 

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ONCE A COURT SENTENCES A DEFENDANT TO SHOCK INCARCERATION, THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DOES NOT HAVE THE AUTHORITY TO DETERMINE THE DEFENDANT IS NOT ELIGIBLE; APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department, in full-fledged opinion by Justice Reynolds Fitzgerald, determined the Department of Corrections and Community Supervision (DOCCS) did not have the authority to find the peititioner was not eligible for the shock incarceration based upon his drug-related prison disciplinary history. Although the appeal was moot because petitioner had completed the program, the appeal was heard as an exception to the mootness doctrine because the scenario is likely to recur:

Once an inmate has been judicially ordered into the program, DOCCS’ participation under Penal Law § 60.04 (7) is expressly limited to its administration of the program, i.e., the completion, discipline and removal of an inmate from the program. If the Legislature intended DOCCS to have administrative discretion as to the eligibility criteria, it could have said so. It is a canon of statutory interpretation that a court cannot by implication supply in a statute a provision that it is reasonable to suppose the Legislature intended to omit (see McKinney’s Cons Laws of NY, Statutes § 74). The doctrine of expressio unius est exclusio alterius applies. The specification that DOCCS shall oversee completion, discipline and removal from the program implies in the strongest sense that the omission of DOCCS’ administrative eligibility regulation was intentional and not inadvertent … . Matter of Matzell v Annucci, 2020 NY Slip Op 01425. Third Dept 2-27-20

 

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