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AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE.

The Third Department, in a full-fledged opinion by Justice Garry, determined the Department of Corrections and Community Services (DOCCS) did not give the petitioner, an indigent sex offender who had completed his sentence, adequate assistance in finding housing in a residential treatment facility (RTF) upon release. Although petitioner had been provided RTF housing by the time the matter was heard, the Third Department reached the issue as an exception to the mootness doctrine. DOCCS’s insufficient assistance in finding RTF housing for released sex offenders was deemed a recurring problem that needed to be addressed:

We agree with petitioner that, due to the “recognized difficulty in securing acceptable housing” for persons subject to sex offender residency restrictions, there is a likelihood of repetition regarding individuals being placed in RTFs due to the failure to secure suitable housing … . Given the transitory purpose of RTFs and considering the lack of appellate precedent regarding challenges to RTF placements and programing, we further recognize that the phenomenon typically evades review … . Finally, we find the issues novel and substantial given that petitioner’s challenges concern whether RTFs are serving their distinct purpose, as contrasted with confinement facilities generally … . * * *

The feasibility and appropriateness of the specific means by which DOCCS may choose to provide affirmative assistance in locating housing to petitioner are, of course, discretionary and beyond the reach of judicial review unless they are shown to be irrational, arbitrary and capricious. Accordingly, we may not specify the particular actions that DOCCS should have taken. Nevertheless, its passive approach of leaving the primary obligation to locate housing to an individual confined in a medium security prison facility 100 miles from his family and community, without access to information or communication resources beyond that afforded to other prison inmates, falls far short of the spirit and purpose of the legislative obligation imposed upon DOCCS to assist in this process. Matter of Gonzalez v Annucci, 2017 NY Slip Op 02099, 3rd Dept 3-23-17

CRIMINAL LAW (AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)/SEX OFFENDERS (AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)/RESIDENTIAL TREATMENT FACILITY (SEX OFFENDERS, AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)/APPEALS (AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)

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WHETHER DEFENDANT MADE AN UNEQUIVOCAL REQUEST FOR COUNSEL IS A MIXED QUESTION OF LAW AND FACT WHICH CANNOT BE HEARD BY THE COURT OF APPEALS.

The Court of Appeals determined the issue whether defendant made an unequivocal request for counsel presented a mixed question of law and fact which cannot be heard by the Court of Appeals. People v Slocum, 2017 NY Slip Op 02089, CtApp 3-23-17

CRIMINAL LAW (WHETHER DEFENDANT MADE AN UNEQUIVOCAL REQUEST FOR COUNSEL IS A MIXED QUESTION OF LAW AND FACT WHICH CANNOT BE HEARD BY THE COURT OF APPEALS)/ATTORNEYS (CRIMINAL LAW, APPEALS, WHETHER DEFENDANT MADE AN UNEQUIVOCAL REQUEST FOR COUNSEL IS A MIXED QUESTION OF LAW AND FACT WHICH CANNOT BE HEARD BY THE COURT OF APPEALS)/APPEALS (CRIMINAL LAW, WHETHER DEFENDANT MADE AN UNEQUIVOCAL REQUEST FOR COUNSEL IS A MIXED QUESTION OF LAW AND FACT WHICH CANNOT BE HEARD BY THE COURT OF APPEALS)

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PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL.

The Second Department determined petitioner was properly estopped from asserting his paternity claim. The Second Department noted that the fact that petitioner’s paternity petition was reinstated upon a prior appeal did not preclude the denial of the petition on equitable estoppel grounds:

The Family Court properly applied the doctrine of equitable estoppel to preclude the petitioner from asserting his paternity claim with respect to the subject child. The evidence at a hearing established that the respondent Gaston R. has established a strong father-daughter relationship with the child. The child has referred to Gaston R. as “daddy” since she was 18 months old and continues to view him as the only father figure in her life. In contrast, the petitioner learned, shortly after the child’s birth, that he was the child’s biological father. Nevertheless, he did not commence the instant paternity proceeding until the child was four years old. The petitioner has not had a parent-child relationship with the child for several years, and the child no longer recognizes the petitioner’s name. Under these circumstances, the court properly determined that it was in the child’s best interests to equitably estop the petitioner from asserting his paternity claim

Contrary to the petitioner’s contention, this Court’s determination on a prior appeal, which, inter alia, reinstated his paternity petition, did not preclude the Family Court from considering the doctrine of equitable estoppel upon remittal … . Matter of Thomas T. v Luba R., 2017 NY Slip Op 01870, 2nd Dept 3-15-17

 

FAMILY LAW (PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)/PATERNITY (PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)/EQUITABLE ESTOPPEL (FAMILY LAW, PATERNITY, PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)/APPEALS (FAMILY LAW, PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)

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VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION; EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT.

The First Department, over an extensive dissent, determined Family Court properly issued a final order of protection after respondent’s violation of a temporary order of protection. The court noted that the expiration of the order of protection did not render the appeal moot because the order “still imposes significant enduring consequences upon respondent…”. The dissent argued that a final order of protection cannot be issued unless a family offense has been committed:

Here, the Family Court found, on the record after a hearing, that respondent had willfully violated the temporary order of protection with his April 3, 2014 emails containing statements clearly intended to harass petitioner. As a result of this determination, the Family Court conducted a dispositional hearing on respondent’s violation of the temporary order of protection, and thereafter issued a new order of protection. The Family Court adhered to the prescribed procedure and did not exceed its jurisdiction by issuing this final order of protection. * * * … [W]e read Family Court Act § 846-a as prescribing the remedies available to the court when a respondent violates a temporary order of protection, which is what is at issue here. Matter of Lisa T. v King E.T., 2017 NY Slip Op 01487, 1st Dept 2-28-17

FAMILY LAW (VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION, EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT)/ORDER OF PROTECTION (FAMILY LAW, VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION, EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT)/APPEALS (FAMILY LAW, VIOLATION OF A TEMPORARY ORDER OF PROTECTION IS A VALID GROUND FOR ISSUANCE OF A FINAL ORDER OF PROTECTION, EXPIRATION OF AN ORDER OF PROTECTION DOES NOT RENDER AN APPEAL MOOT)

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NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING.

The First Department determined the denial of a civil motion seeking discovery (letters rogatory) oversees which was made in the context of a criminal proceeding could not be the subject of an interlocutory appeal:

In this matter where an indictment has been filed, a criminal trial is pending, and defendants seek information via letters rogatory for use at their criminal trial, the denial of the application for such letters is part of the criminal proceeding, notwithstanding that the application was brought under CPLR 3108 … .

“It is well established that no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute”  … . The order appealed from is not a disposition listed in CPL 450.10 or 450.15, and is therefore not an appealable paper … . A “defendant may only appeal after conviction” … , and may not obtain an interlocutory appeal by claiming to invoke the court’s civil jurisdiction. People v DePalo, 2017 NY Slip Op 01441, 1st Dept 2-23-17

 

CRIMINAL LAW (NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)/APPEALS (CRIMINAL LAW, NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)/CIVIL PROCEDURE (CRIMINAL LAW, NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)/LETTERS ROGATORY (CRIMINAL LAW, APPEALS, NO INTERLOCUTORY APPEAL FROM DENIAL OF A CIVIL MOTION MADE IN THE CONTEXT OF A CRIMINAL PROCEEDING)

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CHILD SHOULD NOT HAVE BEEN REMOVED FROM FATHER’S CARE, EVEN THOUGH CHILD HAS BEEN RETURNED, APPEAL NOT MOOT BECAUSE OF THE STIGMA OF REMOVAL.

The Second Department, reversing Family Court, determined the removal application should not have been granted and father’s appeal of the removal was not moot, even though the child had been returned to the father:

Although it is undisputed that the child has been returned to the father’s care, the father’s appeals are not academic. The child’s removal created a permanent and significant stigma … .

“In determining a removal application pursuant to Family Court Act § 1027, the court must engage in a balancing test of the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal'” … . Here, the petitioner failed to establish that the child would be subjected to imminent risk if she were not placed in the custody of the petitioner pending the outcome of the neglect proceeding. Under the circumstances of this case, concerns about, inter alia, the adequacy of the father’s plan to care for the child did not amount to an imminent risk to the child’s life or health that could not be mitigated by reasonable efforts to avoid removal. Matter of Emmanuela B. (Jean E.B.), 2017 NY Slip Op 01195, 2nd Dept 2-15-17

 

FAMILY LAW (NEGLECT, REMOVAL, CHILD SHOULD NOT HAVE BEEN REMOVED FROM FATHER’S CARE, EVEN THOUGH CHILD HAS BEEN RETURNED, APPEAL NOT MOOT BECAUSE OF THE STIGMA OF REMOVAL)/APPEALS (FAMILY LAW, CHILD SHOULD NOT HAVE BEEN REMOVED FROM FATHER’S CARE, EVEN THOUGH CHILD HAS BEEN RETURNED, APPEAL NOT MOOT BECAUSE OF THE STIGMA OF REMOVAL)/NEGLECT (CHILD SHOULD NOT HAVE BEEN REMOVED FROM FATHER’S CARE, EVEN THOUGH CHILD HAS BEEN RETURNED, APPEAL NOT MOOT BECAUSE OF THE STIGMA OF REMOVAL)/REMOVAL (CHILD NEGLECT, FAMILY LAW, CHILD SHOULD NOT HAVE BEEN REMOVED FROM FATHER’S CARE, EVEN THOUGH CHILD HAS BEEN RETURNED, APPEAL NOT MOOT BECAUSE OF THE STIGMA OF REMOVAL)

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CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined defendant’s argument that three consecutive 25-year sentences arising from the same incident constituted cruel and unusual punishment was not preserved for review:

Defendant failed to preserve for review his claim that the sentence imposed by the court was “cruel and unusual.” Although defendant generally objected to the length of the sentence before the sentencing court, arguing that the sentence was draconian, he did not alert the court to his constitutional argument. Thus, the sentencing court was never given an opportunity to address any of the constitutional challenges that defendant now lodges with this Court. Accordingly, defendant’s “claim [ ] that his sentence constituted cruel and inhuman punishment [ ] is not properly before us” … . People v Pena, 2017 NY Slip Op 01142, CtApp 2-14-17

CRIMINAL LAW (CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW)/APPEALS (CRIMINAL LAW, CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW)/CRUEL AND UNUSUAL PUNISHMENT (CRIMINAL LAW, CRUEL AND UNUSUAL PUNISHMENT ARGUMENT NOT PRESERVED FOR REVIEW)

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AFTER APPEAL AND REMITTAL, DEFENDANT WAS ENTITLED TO PUT ON A DEFENSE AFTER THE MOTION FOR A TRIAL ORDER OF DISMISSAL WAS DENIED; PRIOR TO THE APPEAL THE VERDICT HAD BEEN PREMATURELY ANNOUNCED WITHOUT ANY RULING ON THE TRIAL ORDER OF DISMISSAL MOTION.

The Fourth Department determined defendant was entitled to the opportunity to present a defense after the motion for a trial order of dismissal was denied:

When the appeal was previously before us, we held the case, reserved decision, and remitted the matter to County Court for a ruling on the motion for a trial order of dismissal “following such further proceedings as may be necessary” … . Upon remittal, the court … denied the motion … . … [T]he court did not afford defendant the opportunity to present a defense, notwithstanding that defendant had not rested and the proof was not closed. Contrary to the court’s conclusion, the fact that we did not set aside its premature verdict [the motion for a trial order of dismissal had not been ruled on] when the appeal was previously before us did not preclude it from considering further proof or making new factual determinations … . We therefore hold the case, reserve decision, and remit the matter to County Court to afford defendant the opportunity to present a defense. People v White, 2017 NY Slip Op 01058, 4th Dept 2-10-17

CRIMINAL LAW (AFTER APPEAL AND REMITTAL, DEFENDANT WAS ENTITLED TO PUT ON A DEFENSE AFTER THE MOTION FOR TRIAL ORDER OF DISMISSAL WAS DENIED, PRIOR TO THE APPEAL THE VERDICT HAD BEEN PREMATURELY ANNOUNCED WITHOUT ANY RULING ON THE TRIAL ORDER OF DISMISSAL MOTION)/TRIAL ORDER OF DISMISSAL, MOTION FOR AFTER APPEAL AND REMITTAL, DEFENDANT WAS ENTITLED TO PUT ON A DEFENSE AFTER MOTION FOR TRIAL ORDER OF DISMISSAL DENIED, PRIOR TO THE APPEAL THE VERDICT HAD BEEN PREMATURELY ANNOUNCED WITHOUT ANY RULING ON THE TRIAL ORDER OF DISMISSAL MOTION)/APPEALS (CRIMINAL LAW, AFTER APPEAL AND REMITTAL, DEFENDANT WAS ENTITLED TO PUT ON A DEFENSE AFTER THE MOTION FOR TRIAL ORDER OF DISMISSAL WAS DENIED, PRIOR TO THE APPEAL THE VERDICT HAD BEEN PREMATURELY ANNOUNCED WITHOUT ANY RULING ON THE TRIAL ORDER OF DISMISSAL MOTION)

ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL.

The First Department rejected the plaintiff’s attempt to appeal evidentiary rulings made by the trial court. Plaintiff had successfully moved to set aside the defense verdict in this personal injury case. The First Department reversed and directed the clerk to enter a judgment dismissing the complaint. The plaintiff then appealed that order, raising trial evidentiary issues. The First Department held that the order appealed from was not the order of the trial court, therefore the interlocutory evidentiary rulings could not be raised:

Although an appeal from a final order or judgment of Supreme Court brings up for review, inter alia, certain evidentiary rulings made at trial (CPLR 5501[a][3] …), once this Court decides the issues raised on appeal and directs the Clerk of the court from which the appeal originated to enter judgment, such judgment finally disposes of all the issues in the action (CPLR 5701[a][1]…). The judgment that the Clerk entered … was entered in accordance with and pursuant to an order of this Court (the Appellate Division) which “dispose[d] of all the issues in the action” (CPLR 5701[a][1]). Stated differently, the … judgment is not a judgment of the trial court bringing up interlocutory issues for review … . …

Plaintiff did not move to set aside the verdict based upon erroneous evidentiary rulings. Although as plaintiff correctly argues, there is no interlocutory appeal as of right from an evidentiary ruling during trial (see CPLR 5701[a]…), plaintiff had the opportunity to raise legal arguments regarding the evidentiary rulings made by the trial court in support of her motion to set aside the jury’s verdict.

These issues could have also been raised to support her position in the prior appeal. Powell v City of New York, 2017 NY Slip Op 00576, 1st Dept 1-31-17

 

APPEALS (ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL)/INTERLOCUTORY EVIDENTIARY RULINGS (APPEALS, ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL)/REVERSAL (APPEALS, (ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL)

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FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE.

The Third Department, in a decision too detailed to fairly summarize here, determined Family Court’s many mistakes, which have resulted in mother’s inability to visit with her children for years, required a new hearing in front of a different judge. The Third Department had reversed the termination of mother’s parental rights in 2013. Family Court, however, refused to reinstate her parental rights and mother has been fighting to be allowed supervised visitation ever since:

… [W]e must address Family Court’s flawed understanding of the legal effect of our October 2013 order reversing the orders that terminated the mother’s parental rights to the children. Inexplicably, Family Court incorrectly and repeatedly stated on the record that there was no declaration by this Court that the mother’s parental rights or any prior orders were reinstated and that the mother was mistaken that her parental rights had been restored.

It is fundamental that the reversal of an order upon appellate review restores the party who prevailed on appeal to the position that he or she enjoyed prior to entry of the order appealed from … . Contrary to Family Court’s statements, this Court’s October 2013 order did reinstate the mother’s parental rights and restored her to the position that she was in prior to the erroneous termination of her parental rights. It appears from the record that, at such time, the mother had been afforded supervised visitation with the children once a week. Accordingly, upon the reinstatement of her parental rights, the mother was, at a minimum, entitled to the restoration of the visitation that she was afforded prior to the termination, unless it could be demonstrated by respondent that there were “‘compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child[ren]’s welfare'” … . Matter of Angela F. v St. Lawrence County Dept. of Social Servs., 2017 NY Slip Op 00513, 3rd Dept 1-26-17

See also the related case: Matter of Angela F. v Gail WW., 2017 NY Slip Op 00514, 3rd Dept 1-25-17

 

FAMILY LAW (FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPARTMENT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE)/JUDGES (FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPARTMENT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE)/APPEALS (FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPARTMENT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE)

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