Appeals – Page 103 – New York Appellate Digest

Appeals, Attorneys, Criminal Law, Evidence

ERROR TO ALLOW PROSECUTOR TO IMPEACH HER OWN WITNESS WITH THE WITNESS’S GRAND JURY TESTIMONY, EVIDENTIARY ERRORS COUPLED WITH PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department determined the allowing the prosecutor to impeach her own witness with the witness’s grand jury testimony, allowing inadmissible hearsay, together with the prosecutor’s improper remarks in summation, required reversal in the interest of justIce:

… [A] new trial is warranted as a result of two evidentiary errors, both of which were compounded by improper remarks made during the People’s summation. Specifically, the Supreme Court allowed the prosecutor to impeach one of her own witnesses, who testified at trial that it was dark at the time of the shooting and she “couldn’t really see” the shooter. The prosecutor was permitted to read that witness’s prior grand jury testimony, in which she stated that she recognized the shooter as a person going by the nickname of E-Villain. This was error … . Moreover, during summation, the prosecutor compounded the error by improperly using the prior inconsistent statement as evidence in chief … , telling the jury that when that witness previously spoke to the police, to an assistant district attorney, and to the grand jury, “on each of those occasions, she said what it is she saw and who it is that she saw do it,” and urging the jury to find “she was not telling you the truth when she said that I now am telling you I did not see who did it, that it was too dark.” Later, the prosecutor went one step further, stating, in direct contradiction to the witness’s trial testimony, that “[she] saw who it was.”

The Supreme Court also erred in allowing another witness to testify that a “little girl said that [the defendant] shot [the victim]” … . Moreover, on summation, the prosecutor not only repeated the improper hearsay testimony but also mispresented the defendant as having told one of the witnesses, “You know what, that little girl that told you that was a hundred percent right.” People v Thomas, 2016 NY Slip Op 06851, 2nd Dept 10-19-16

CRIMINAL LAW (EVIDENTIARY ERRORS COUPLED WITH PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (CRIMINAL LAW, PROSECUTOR’S IMPEACHMENT OF PEOPLE’S WITNESS WITH GRAND JURY TESTIMONY, INADMISSIBLE HEARSAY, AND PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL)/APPEALS (EVIDENTIARY ERRORS COUPLED WITH PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/GRAND JURY (PROSECUTOR’S IMPEACHMENT OF PEOPLE’S WITNESS WITH GRAND JURY TESTIMONY, INADMISSIBLE HEARSAY, AND PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL)/IMPEACHMENT (CRIMINAL LAW, PROSECUTOR’S IMPEACHMENT OF PEOPLE’S WITNESS WITH GRAND JURY TESTIMONY, INADMISSIBLE HEARSAY, AND PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL)/APPEALS (CRIMINAL LAW, (EVIDENTIARY ERRORS COUPLED WITH PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

October 19, 2016

Appeals

COUNTY COURT DID NOT HAVE THE POWER, ON APPEAL FROM A SMALL CLAIMS COURT JUDGMENT, TO REMIT THE MATTER FOR A NEW ASSESSMENT OF DAMAGES; BECAUSE THE DAMAGES AMOUNT WAS NOT SUFFICIENTLY DEMONSTRATED, COUNTY COURT SHOULD HAVE DISMISSED THE CLAIM.

The Fourth Department determined County Court, upon an appeal of a small claims court judgment for conversion, did not have the power to remit the matter to small claims court for a redetermination of damages. County Court was obligated to dismiss the claim:

We agree with defendant that County Court erred in remitting the matter for a new trial on the issue of damages with respect to her, and we therefore modify the order accordingly. “[S]ubstantive justice cannot permit plaintiff[] a second opportunity to prove [her] damages merely because [she] failed to meet [her] prima facie burden in the first instance” … . Thus, upon determining that there was insufficient evidence of damages with respect to defendant, County Court was obligated to dismiss the claim against her rather than remit the matter for a new trial … . Mahar v Proper, 2016 NY Slip Op 06590, 4th Dept 10-7-16

APPEALS (COUNTY COURT DID NOT HAVE THE POWER, ON APPEAL FROM A SMALL CLAIMS COURT JUDGMENT, TO REMIT THE MATTER FOR A NEW ASSESSMENT OF DAMAGES; BECAUSE THE DAMAGES AMOUNT WAS WAS NOT SUFFICIENTLY DEMONSTRATED, COUNTY COURT SHOULD HAVE DISMISSED THE CLAIM)/DAMAGES (APPEALS, COUNTY COURT DID NOT HAVE THE POWER, ON APPEAL FROM A SMALL CLAIMS COURT JUDGMENT, TO REMIT THE MATTER FOR A NEW ASSESSMENT OF DAMAGES; BECAUSE THE DAMAGES AMOUNT WAS WAS NOT SUFFICIENTLY DEMONSTRATED, COUNTY COURT SHOULD HAVE DISMISSED THE CLAIM)/SMALL CLAIMS (APPEALS, COUNTY COURT DID NOT HAVE THE POWER, ON APPEAL FROM A SMALL CLAIMS COURT JUDGMENT, TO REMIT THE MATTER FOR A NEW ASSESSMENT OF DAMAGES; BECAUSE THE DAMAGES AMOUNT WAS WAS NOT SUFFICIENTLY DEMONSTRATED, COUNTY COURT SHOULD HAVE DISMISSED THE CLAIM)

October 7, 2016

Appeals, Attorneys, Family Law

COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE.

The Second Department, reversing a consent order, determined Family Court did not take the necessary steps to ensure father wished to waive his right to counsel in this custody/relocation proceeding. Father had indicated he wished to be represented by legal aid. Legal aid informed the court father did not qualify for their services. Father appeared pro se without any further inquiry by the court:

Although the order appealed from recites that it was entered on consent, under the particular facts and circumstances of this case, we are not precluded from reviewing whether the Family Court secured a valid waiver of the father’s right to counsel. The Family Court erred in allowing the father to proceed pro se. When the father expressed a desire to have an attorney appointed, the court should have inquired further into the father’s financial circumstances, including, but not limited to, inquiring about his expenses … . Moreover, the court did not determine whether the father was unequivocally, voluntarily, and intelligently waiving his right to counsel … . Despite the father’s statements at pretrial appearances that he would like to have an attorney appointed, the court presided over the hearing without inquiring into why the father was appearing pro se, or whether he understood the risks and disadvantages of doing so. Matter of Soto v Willis, 2016 NY Slip Op 06505, 2nd Dept 10-5-16

FAMILY LAW (COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/ATTORNEYS (FAMILY LAW, CUSTODY, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/APPEALS (FAMILY LAW, CUSTODY, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/APPEALS (FAMILY LAW, CONSENT ORDER, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)

October 5, 2016

Appeals, Immunity, Municipal Law

WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED.

The First Department determined the Port Authority of NY & NJ did not waive sovereign immunity, despite several contract provisions requiring several steps to resolve disputes prior to resorting to suit. Because the notice of claim and the subsequent filing of a complaint were not timely pursuant to Unconsolidated Law 7107, the complaint was properly dismissed. The court noted that, although the waiver of sovereignty argument was not raised below, the appellate court could consider the argument (which was rejected). With respect to the powers of the appellate court in this context, the court explained:

… [W]here a party does not allege new facts, but merely raises a legal argument that appeared upon the face of the record, we are free to consider the argument “[s]o long as the issue is determinative and the record on appeal is sufficient to permit our review” … . The waiver argument presents this very circumstance, and therefore, we consider [the] waiver argument on this appeal. W&W Steel, LLC v Port Auth. of N.Y. & N.J., 2016 NY Slip Op 05900, 1st Dept 8-25-16

(MUNICIPAL LAW (WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED)APPEALS (WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED)/IMMUNITY (MUNICIPAL LAW, WAIVER OF SOVEREIGN IMMUNITY ARGUMENT COULD BE CONSIDERED ON APPEAL EVEN THOUGH NOT RAISED BELOW, CRITERIA EXPLAINED)

August 25, 2016

Appeals, Attorneys, Criminal Law

GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA.

The Third Department, over an extensive dissent, determined: (1) a claim of grand juror bias is forfeited by a guilty plea; and (2) erroneous advice from defense counsel indicating the issue was appealable the guilty plea provided defendant with a ground for moving to withdraw his plea:

Inasmuch as defendant’s misunderstanding as to his ability to appeal the juror bias issue was brought to County Court’s attention at sentencing, we find that defendant’s challenge to the voluntariness of his plea has been sufficiently preserved for our review … , notwithstanding the absence of an appropriate postallocution motion. Once County Court learned that defendant had been given erroneous advice by counsel, the court should have conducted a further inquiry to ascertain whether defendant wished to go forward with the plea … . Absent such inquiry by County Court, and in light of the fact that the record otherwise presents “a genuine issue of fact as to the knowing, intelligent and voluntary nature of defendant’s guilty plea” … , this matter must be remitted to County Court to afford defendant an opportunity to either accept the plea that was offered or move to withdraw his plea … . People v Clark, 2016 NY Slip Op 05831, 3rd Dept 8-18-16

CRIMINAL LAW (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)/APPEALS (CRIMINAL LAW, (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)/ATTORNEYS (CRIMINAL LAW, (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)

August 18, 2016

Appeals, Family Law

CRITERIA FOR REVEIW OF A CUSTODY DETERMINATION CONCISELY EXPLAINED.

The Second Department, upholding Family Court’s custody determination, offered a concise description of the analytical criteria:

There is “no prima facie right to the custody of the child in either parent” … . The essential consideration in making an award of custody is the best interests of the children … , which are determined by a review of the totality of the circumstances … . In making a determination as to what custody arrangement is in the children’s best interests, the court should consider the quality of the home environment and the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children’s emotional and intellectual development, the financial status and ability of each parent to provide for the children, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children’s relationship with the other parent … . The court should also consider the children’s wishes, weighed in light of their ages and maturity … . “As a custody determination depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, the findings of the Family Court will not be disturbed unless they lack a sound and substantial basis in the record” … . Matter of Schultheis v Schultheis, 2016 NY Slip Op 05648, 2nd Dept 7-27-16

FAMILY LAW (CRITERIA FOR REVIEW OF A CUSTODY DETERMINATION CONCISELY EXPLAINED)/CUSTODY (CRITERIA FOR RREVEIW OF A CUSTODY DETERMINATION CONCISELY EXPLAINED)/APPPEALS (FAMILY LAW, CRITERIA FOR REVIEW OF A CUSTODY DETERMINATION CONCISELY EXPLAINED)

July 27, 2016

Appeals, Contract Law

REVIEW CRITERIA FOR A SMALL CLAIMS RULING EXPLAINED; SMALL CLAIMS FINDING THAT A CONTRACT WAS UNENFORCEABLE AS UNCONSCIONABLE UPHELD.

Reversing the Appellate Term, the Second Department explained the review criteria for a Small Claims Court (District Court) ruling. The Second Department upheld the Small Claims determination a contract was unenforceable as unconscionable:

An appeal from a small claims judgment is permitted “on the sole ground that substantial justice has not been done between the parties according to the rules and principles of substantive law” (Uniform Dist Ct Act § 1807). ” Accordingly, a small claims judgment may not be overturned simply because the determination appealed from involves an arguable point on which an appellate court may differ; the deviation from substantive law must be readily apparent and the court’s determination clearly erroneous'” … .

Here, the District Court’s determination that the subject contract was unenforceable according to its literal terms because it was unconscionable was not clearly erroneous … . Tranquility Salon & Day Spa, Inc. v Caira, 2016 NY Slip Op 05637, 2nd Dept 7-27-16

CONTRACT LAW (REVIEW CRITERIA FOR A SMALL CLAIMS RULING EXPLAINED; SMALL CLAIMS FINDING THAT A CONTRACT WAS UNENFORCEABLE AS UNCONSCIONABLE UPHELD)/APPEALS (SMALL CLAIMS, CRITERIA FOR A SMALL CLAIMS RULING EXPLAINED; SMALL CLAIMS FINDING THAT A CONTRACT WAS UNENFORCEABLE AS UNCONSCIONABLE UPHELD)/SMALL CLAIMS (APPEAL, (REVIEW CRITERIA FOR A SMALL CLAIMS RULING EXPLAINED; SMALL CLAIMS FINDING THAT A CONTRACT WAS UNENFORCEABLE AS UNCONSCIONABLE UPHELD)

July 27, 2016

Appeals, Criminal Law, Evidence, Family Law

WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED.

The Second Department, reversing Family Court, determined the finding that appellant, had he been an adult, would have committed criminal possession of a weapon (and related offenses) was against the weight of the evidence. The Second Department clearly explained its role in a weight of the evidence review and essentially rejected the testimony of the arresting officers:

In conducting our weight of the evidence review, we have a responsibility to affirmatively review the record; independently assess all of the proof; substitute our own credibility determinations for those made by the Family Court in an appropriate case; determine whether the Family Court’s determination was factually correct; and acquit the appellant if we are not convinced that the Family Court’s adjudication of the appellant as a juvenile delinquent was proven beyond a reasonable doubt … . * * *

The reasonable inferences to be made from the officers’ collective testimony were that at least two other individuals were with the appellant at the time of his arrest and, contrary to the initial testimony that the appellant was the only person observed in the area of the firearm, multiple individuals were in the vicinity of the firearm at the relevant time.

In addition, when the appellant was brought to the precinct, he denied possessing the firearm and asked Officer Thomas to check to see if there were cameras in the area of the incident. Officer Thomas testified that at the end of his shift on the date in question, he returned to the scene and viewed surveillance video from a store in the area. However, he did not take notes or ask for a copy of the video, and he “completely forgot to notify anybody” of his investigation or record it in his memo book. At the time of the fact-finding hearing, he could not recall whether the video he viewed depicted the street at the relevant time. Matter of Trevor S., 2016 NY Slip Op 05574, 2nd Dept 7-20-16

FAMILY LAW (JUVENILE DELINQUENCY, WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)/EVIDENCE (JUVENILE DELINQUENCY, WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)/CRIMINAL LAW (JUVENILE DELINQUENCY, WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)/APPEALS (JUVENILE DELINQUENCY, WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)/JUVENILE DELINQUENCY (WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)

July 20, 2016

Appeals, Criminal Law, Immigration Law

REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED.

The First Department, over a two-justice dissent, determined the non-citizen defendant, whose direct appeal was pending when he absconded, was entitled to the protection afforded by People v Peque, 22 NY3d 168, which requires the court to inform the defendant deportation may follow a plea to a felony:

The issue here is whether a defendant whose case still is on direct appeal should be denied the benefit of the Court of Appeals’ ruling in People v Peque … , which is rooted in federal constitutional law, because defendant absconded from parole before his attorney perfected this appeal. We conclude Peque should apply to defendant’s case.

In Peque, the Court of Appeals held that a trial court is obligated to apprise any defendants 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 … . That decision acknowledged that under federal immigration law, deportation, in many cases, is an inevitable consequence of a noncitizen’s guilty plea and that as part of the defendant’s decision to make a voluntary and intelligent choice to plead guilty, the defendant must be alerted to the deportation consequences by the court. In the instant case, the court did not advise defendant about the immigration consequences flowing from his plea … . People v Tejeda, 2016 NY Slip Op 05541, 1st Dept 7-14-16

CRIMINAL LAW (REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)/APPEALS (CRIMINAL LAW, REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)/DEPORTATION (CRIMINAL LAW, REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)/IMMIGRATION LAW (CRIMINAL LAW, REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)

July 14, 2016

Appeals, Criminal Law

FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JURORS RENDERED THE ISSUE UNPRESERVED FOR APPEAL.

The Third Department, over a two justice dissent, determined defense counsel’s failure to contest the prosecutor’s race-neutral reasons for striking jurors rendered the issue unpreserved for appeal:

Following the People’s step-two proffer, County Court denied the Batson challenge, without any attempt to respond or protestation registered by defendant. Now, on appeal, defendant contends for the first time that County Court erred in failing to conduct a step-three inquiry. However, “[b]y accepting the People’s explanation without any additional objection at a time [when] it could have been addressed, defendant failed to preserve” this contention for our review … , and we decline to exercise our interest of justice jurisdiction … . In reaching this conclusion, we reaffirm the importance of both the trial court’s attention to each articulated, sequential step of the Batson inquiry, and counsel’s “attention to placing their objections on the record so they may be addressed by the court” … . Indeed, “whatever procedural problems may exist in a Batson inquiry, the overriding concern is that a properly preserved question regarding the ultimate issue of discrimination is meaningfully addressed” … . People v Acevedo, 2016 NY Slip Op 05517, 3rd Dept 7-14-16

CRIMINAL LAW (FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JUROR RENDERED THE ISSUE UNPRESERVED FOR APPEAL)/JURORS (BATSON CHALLENGE, FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JUROR RENDERED THE ISSUE UNPRESERVED FOR APPEAL)/APPEALS (BATSON CHALLENGE, FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JUROR RENDERED THE ISSUE UNPRESERVED FOR APPEAL)/BATSON CHALLENGE (FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JUROR RENDERED THE ISSUE UNPRESERVED FOR APPEAL)