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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)

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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)

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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)

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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)

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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)

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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)

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QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW.

The Second Department determined plaintiff special guardian had raised a question of fact about whether the fiduciary tolling rule applied to this breach of fiduciary duty action brought on behalf of her mentally ill brother, thereby rendering the action timely. The court explained the rule and why the issue can be raised for the first time on appeal:

… [T]he plaintiff raised a question of fact as to whether the statute of limitations was tolled pursuant to the fiduciary tolling rule or the “repudiation rule,” under which the “applicable statutory period . . . does not begin to run until the fiduciary has openly repudiated his or her obligation or the relationship has been otherwise terminated” … . Although the plaintiff raises the issue for the first time on appeal, the issue of whether the fiduciary tolling rules applies to the facts as alleged may be reached, since it involves a question of law which appears on the face of the record and which could not have been avoided if raised at the proper juncture … . Franklin v Hafftka, 2016 NY Slip Op 04692, 2nd Dept 6-15-16

CIVIL PROCEDURE (STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW)/STATUTE OF LIMITATIONS (QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW)/FIDUCIARY TOLLING RULE (STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW)FIDUCIARY DUTY, BREACH OF (STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW)/APPEALS (STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW)

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SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING.

The First Department determined that sex-offender certification is part of the judgment of conviction. Challenge to sex-offender certification, therefore, must be raised on appeal from the judgment and cannot be raised for the first time in a SORA risk-level determination:

Although this appeal from a risk level determination is not subject to dismissal, it does not bring up for review defendant’s claim that his underlying New York felony conviction was not for an offense requiring registration as a sex offender. Sex offender certification is part of the judgment of conviction, and the proper occasion for defendant to have challenged that certification was on an appeal from the judgment …, but defendant did not appeal. People v Miguel, 2016 NY Slip Op 04666, 1st Dept 6-14-16

 

CRIMINAL LAW (SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING)/APPEALS (SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING)/SEX OFFENDER REGISTRATION ACE (SORA) (SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING)/SORA (SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING)

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SHACKLES, QUESTIONS ABOUT A PENDING INDICTMENT, AND FAILURE TO INFORM THE GRAND JURY OF A WITNESS REQUESTED BY THE DEFENDANT WERE NOT MODE OF PROCEEDINGS ERRORS AND WERE NOT PRESERVED FOR APPEAL.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the shackling of defendant during the grand jury proceedings, the prosecutor's questions during the grand jury proceedings about a pending indictment, and the prosecutor's failure to inform the grand jury of a witness requested by the defendant, were not mode of proceedings errors. Therefore, preservation of the errors by objection was required:

Defendant argues that the preservation rule should be disregarded with respect to the shackling challenge because the prosecution inaccurately stated on the record that the Court had previously denied such a challenge when he sought to move to dismiss the indictment on that basis. No circumstances excuse the preservation requirement: defense counsel was present during the Grand Jury proceeding while defendant was shackled. In any event, the failure to make an adequate showing on the record of the need for restraints does not constitute an unwaivable mode of proceedings error … . …

Defendant made no attempt to preserve his challenge to the prosecution's questions before the Grand Jury of his awareness of the potential for increased penalties in an unrelated pending indictment as a result of his conviction in this matter. Such a challenge requires preservation … .

Finally, defendant's challenge to the indictment based on the prosecution's failure to inform the Grand Jury about the requested witness is unpreserved. Here the record demonstrates that before defense counsel was relieved, he likely knew of the fact that the requested witness had not actually testified and was discussing the matter with the prosecution. Defendant relieved counsel before he could fully address the issue with the court, and defendant and his legal advisor, who were aware of and had every incentive to follow up and seek to preserve an objection on this basis, did not do so. Moreover, any error does not rise to the level of a mode of proceedings error. People v Griggs, 2016 NY Slip Op 04655, CtApp 6-14-16

CRIMINAL LAW (SHACKLES, QUESTIONS ABOUT A PENDING INDICTMENT, AND FAILURE TO INFORM THE GRAND JURY OF A WITNESS REQUESTED BY THE DEFENDANT WERE NOT MODE OF PROCEEDINGS ERRORS AND WERE NOT PRESERVED FOR APPEAL)/APPEALS (CRIMINAL LAW, SHACKLES, QUESTIONS ABOUT A PENDING INDICTMENT, AND FAILURE TO INFORM THE GRAND JURY OF A WITNESS REQUESTED BY THE DEFENDANT WERE NOT MODE OF PROCEEDINGS ERRORS AND WERE NOT PRESERVED FOR APPEAL)/MODE OF PROCEEDINGS ERRORS (SHACKLES, QUESTIONS ABOUT A PENDING INDICTMENT, AND FAILURE TO INFORM THE GRAND JURY OF A WITNESS REQUESTED BY THE DEFENDANT WERE NOT MODE OF PROCEEDINGS ERRORS AND WERE NOT PRESERVED FOR APPEAL)

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PROSECUTOR’S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION.

The Fourth Department determined the prosecutor's misstatement concerning the length of post-release supervision did not require reversal because defendant had ample opportunity to raise an objection to preserve the error but did not do so:

Although the prosecutor initially misstated the period of postrelease supervision prior to the plea allocution and the court failed to mention postrelease supervision during the allocution, defendant was aware that the sentence included a postrelease supervision component at the time of the allocution, the court immediately thereafter confirmed the correct agreed-upon sentence, and neither defendant nor defense counsel objected to the period of postrelease supervision or otherwise indicated that there was any misunderstanding with regard to its length. People v Chant, 2016 NY Slip Op 04544, 4th Dept 6-10-16

CRIMINAL LAW PROSECUTOR'S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION)/APPEALS (CRIMINAL LAW, PROSECUTOR'S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION)/POST-RELEASE SUPERVISION PROSECUTOR'S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION)

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