You are here: / Appeals
,

EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED; NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW.

The First Department, in a full-fledged opinion by Justice Acosta, over a two-justice dissenting opinion, reversing Supreme Court, determined: (1) although the finding that petitioner had violated work-related requirements under the family assistance program was reversed and the reduction in petitioner's benefits had been restored, the appeal was not moot; (2) the wording of the notices of required meetings for work-assessment under the family assistance program did not violate the Social Services Law; and (3) the propriety of the “autopost” system by which petitioner's failure to attend a scheduled meeting resulted in an automatically posted infraction must be determined in the context of a summary judgment or a trial (not this declaratory judgment action). The dissenters argued the appeal was moot and should not have been heard:

… [W]e find that the notices at issue do not violate the applicable regulatory scheme. In reviewing these notices, we are mindful that “[t]he standard for judicial review of an administrative regulation is whether the regulation has a rational basis and is not unreasonable, arbitrary or capricious” … , or contrary to the statute under which it was promulgated … . The party challenging a regulation has the heavy burden of establishing that “it is so lacking in reason for its promulgation that it is essentially arbitrary” … . * * *

The regulation and notices closely track the statute, which focuses on how a recipient can demonstrate good cause for having failed to comply with work requirements. In fact, every requirement set forth in SSL § 341 is incorporated into the notices. The crux of Supreme Court's holding is that the regulation and notices do not satisfy a requirement that recipients be expressly told that they can avoid sanction by asserting compliance. The statute on its face, however, simply contains no such requirement. This is particularly true for the notice of decision, because SSL § 341(1)(b) does not require that the notice give examples of good cause. Under these circumstances, this Court cannot find that 18 NYCRR 385.11 and the notices were unreasonable or arbitrary. Matter of Puerto v Doar, 2016 NY Slip Op 04463, 1st Dept 6-9-16

SOCIAL SERVICES LAW (NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW)/FAMILY ASSISTANCE PROGRAM (NYC) (NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW)/APPEALS (EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED; NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW)

,

COURT’S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED.

The Court of Appeals, reversing the Appellate Division, determined (1) the trial court properly notified all parties of the contents of a jury note, and (2), the response to the jury note, in which only the direct testimony of a witness was read back, was not a mode of proceedings error. Therefore the failure to read the cross-examination was an error which must be preserved for appellate review (no preservation here):

Counsel had meaningful notice of the precise content of the jury's note and was in the courtroom as the readback was conducted. Counsel was therefore aware that the court had failed to read the witness's cross-examination testimony. Counsel's knowledge of the precise content of the note and of the court's actual response, or lack thereof, removes the claimed error from the very narrow class of mode of proceedings errors for which preservation is not required … . “[C]ounsel's silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved and unreviewable here” … . People v Morris, 2016 NY Slip Op 04327, CtApp 6-7-16

CRIMINAL LAW (COURT'S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/APPEALS (COURT'S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/MODE OF PROCEEDINGS ERROR  (COURT'S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/PRESERVATION OF ERROR (COURT'S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)

,

PRE-SENTENCE INCARCERATION, AS PART OF A PLEA AGREEMENT, DID NOT RENDER THE SUBSEQUENT SENTENCE ILLEGAL, THEREFORE OBJECTION TO SENTENCE WAS SUBJECT TO THE PRESERVATION REQUIREMENT; CRITERIA FOR OUTLEY HEARING EXPLAINED.

The Court of Appeals, over an extensive dissenting opinion, determined defendant failed to preserve an objection to his sentence because he did not move to withdraw his plea or otherwise object prior to the imposition of sentence. As part of a plea deal, defendant was required to complete six months in jail, followed by a period of time during which he was not arrested. Defendant completed the jail time but was subsequently arrested. Because of the arrest, the plea deal was not available and defendant was sentenced accordingly. The Court of Appeals held that the narrow exception to the preservation requirement for an illegal sentence did not apply to these facts. The jail-time was deemed to be a “pre-sentence” condition and could not, therefore, be deemed an illegal sentence. The court further explained the criterial for an Outley hearing to determine the validity of an arrest which violates a condition for a plea deal:

Here, defendant's sentence was premised on a violation of an admittedly lawful presentence condition – he could not be arrested – and the issue of the propriety of the plea could certainly have been raised prior to sentencing. Thus, defendant's challenge to the presentencing incarceration, which was not part of the sentence, is subject to the preservation rule … . * * *

[At the Outley hearing] the judge heard testimony from the complainant and the arresting officer. Defendant also testified that the complainant had been the aggressor and had attacked him. The judge found that there was a legitimate basis for defendant's arrest, implicitly rejecting defendant's version of events, and that finding was adopted by the sentencing court. Thus, because defendant was given an opportunity to testify to his exculpatory explanation, and his testimony was evidently discredited by the court, the nature of the inquiry was sufficient under our Outley standard. People v Reynolds, 2016 NY Slip Op 04323, CtApp 6-7-16

CRIMINAL LAW (PRE-SENTENCE INCARCERATION, AS PART OF A PLEA AGREEMENT, DID NOT RENDER THE SUBSEQUENT SENTENCE ILLEGAL, THEREFORE OBJECTION TO SENTENCE WAS SUBJECT TO THE PRESERVATION REQUIREMENT; CRITERIA FOR OUTLEY HEARING EXPLAINED)/APPEALS (PRE-SENTENCE INCARCERATION, AS PART OF A PLEA AGREEMENT, DID NOT RENDER THE SUBSEQUENT SENTENCE ILLEGAL, THEREFORE OBJECTION TO SENTENCE WAS SUBJECT TO THE PRESERVATION REQUIREMENT)/SENTENCING (PRE-SENTENCE INCARCERATION, AS PART OF A PLEA AGREEMENT, DID NOT RENDER THE SUBSEQUENT SENTENCE ILLEGAL, THEREFORE OBJECTION TO SENTENCE WAS SUBJECT TO THE PRESERVATION REQUIREMENT; CRITERIA FOR OUTLEY HEARING EXPLAINED)/OUTLEY HEARING (CRITERIA FOR OUTLEY HEARING EXPLAINED)

,

FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE’S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED.

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Fahey, over a dissenting opinion, determined the trial judge's acceptance of the verdict without answering three jury notes was not a mode of proceedings error. Because there was no objection to the failure to answer the jury notes, the error was not preserved. The notes had been marked as court exhibits, had been read verbatim to counsel and counsel were aware of the court's proposed responses. The note indicating a verdict had been reached was sent out before the court was able to answer:

Criminal Procedure Law § 310.30 imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury … . A trial court's failure to fulfill its first responsibility — meaningful notice to counsel — falls within the narrow class of mode of proceedings errors for which preservation is not required … . On this appeal, we consider whether the preservation rule applies when counsel unquestionably had meaningful notice of the jury's substantive inquiries, but the trial court did not respond to those inquiries before accepting the verdict. We hold that where counsel has meaningful notice of the content of a jury note and of the trial court's response, or lack thereof, to that note, the court's alleged violation of the meaningful response requirement does not constitute a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review. People v Mack, 2016 NY Slip Op 04321, CtApp 6-7-16

CRIMINAL LAW (FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/APPEALS (CRIMINAL LAW, FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/MODE OF PROCEEDINGS ERROR (FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/JURY NOTES (CRIMINAL LAW, FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)/PRESERVATION OF ERROR (CRIMINAL LAW, FAILURE TO RESPOND TO JURY NOTES AFTER COUNSEL HAD BEEN MADE AWARE OF THE CONTENTS OF THE NOTES AND THE JUDGE'S PROPOSED RESPONSES WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED)

,

REQUEST FOR DOCUMENTS ABOUT AN UNSOLVED 1987 HOMICIDE SHOULD HAVE BEEN DENIED; APPEAL FROM A NONFINAL ORDER ALLOWED.

The First Department, reversing Supreme Court, determined petitioner was not entitled to all documents held by the NYC Police Department (NYPD) concerning an unsolved 1987 homicide. The court noted that, although an appeal as of right does not generally lie from a nonfinal order in an Article 78 proceeding, leave to appeal was granted here given the important, substantive issues raised:

NYPD properly withheld the requested materials pursuant to the exemption to FOIL for documents that “are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations” (Public Officers Law § 87[2][e][i]). NYPD met its burden of “identify[ing] the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents” … . In particular, NYPD submitted an affidavit by a detective averring that he was handling an active, ongoing investigation into the homicide, and had recently pursued potential leads. The detective's affidavit established that disclosure of the records could interfere with the active investigation by, among other things, leading to witness tampering or enabling the perpetrator to evade detection. Given the foregoing determination, we need not reach the other exemptions cited by NYPD. Matter of Loevy & Loevy v New York City Police Dept., 2016 NY Slip Op 04099, 1st Dept 5-26-16

FREEDOM OF INFORMATION LAW (FOIL) (REQUEST FOR DOCUMENTS ABOUT AN UNSOLVED 1987 HOMICIDE SHOULD HAVE BEEN DENIED; APPEAL FROM A NONFINAL ORDER ALLOWED)/APPEALS (REQUEST FOR DOCUMENTS ABOUT AN UNSOLVED 1987 HOMICIDE SHOULD HAVE BEEN DENIED; APPEAL FROM A NONFINAL ORDER ALLOWED)

,

BURDENS OF PROOF FOR MOTION TO CHANGE VENUE EXPLAINED; CRITERIA FOR RAISING AN ISSUE FOR THE FIRST TIME ON APPEAL EXPLAINED.

The Second Department determined defendant did not meet its burden on its motion to change venue. The court noted that, although one of the arguments in opposition was not raised below, the argument met the criteria for an issue which may be raised for the first time on appeal. The court further noted that reply papers could not be used to meet the defendant's burden. The relevant law was explained as follows:

” [T]o prevail on a motion pursuant to CPLR 510(1) to change venue, a defendant must show that the plaintiff's choice of venue is improper, and also that the defendant's choice of venue is proper'” … . “Only if a defendant meets this burden is the plaintiff required to establish, in opposition, that the venue selected was proper” … . * * *

Although the plaintiff did not point out [the] deficiency in proof in opposing the motion to transfer venue, ” questions of law which appear on the face of the record and which could not have been avoided if raised at the proper juncture may be raised for the first time on appeal'” … . Pinos v Clinton Cafe & Deli, Inc., 2016 NY Slip Op 04035, 2nd Dept 5-25-16

CIVIL PROCEDURE (BURDENS OF PROOF FOR MOTION TO CHANGE VENUE EXPLAINED; CRITERIA FOR RAISING AN ISSUE FOR THE FIRST TIME ON APPEAL EXPLAINED)/APPEALS (CIVIL, CRITERIA FOR RAISING AN ISSUE FOR THE FIRST TIME ON APPEAL EXPLAINED)/VENUE (BURDENS OF PROOF FOR MOTION TO CHANGE VENUE EXPLAINED)

,

ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE.

The Third Department determined an order precluding a party from introducing evidence at trial was appealable in this case. However, under the facts, the order was properly granted. With respect to the appealability of the motion in limine, the court wrote:

As a threshold matter, an order ruling on a motion in limine is generally not appealable as of right or by permission “since an order[] made in advance of trial which merely determined the admissibility of evidence is an unappealable advisory ruling” … . “However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable” … . The order appealed from here, rather than “merely limit[ing] the production of certain evidence as immaterial to damages,” restricted plaintiffs' ability to prove and recover damages … and it is, therefore, appealable … . Calabrese Bakeries, Inc. v Rockland Bakery, Inc., 2016 NY Slip Op 03772, 3rd Dept 5-12-16

APPEALS (ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)/EVIDENCE (APPEALS, ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)/IN LIMINE, MOTION (APPEALS, ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)

,

COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVISION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over an extensive dissenting opinion, determined the trial judge's failure follow the protocol for Batson challenges to the prosecutor's removal of African-American males from the jury required reversal. Although the issues were preserved, the court noted it had the power to exercise interest of justice jurisdiction over Batson issues. The court further held a combined racial/gender bias is the proper subject of a Batson challenge:

The wholesale exclusion of black men from the jury gives rise to a mandatory inference of discrimination at the first step of the Batson inquiry … . The prosecutor used peremptory strikes to eliminate black male jurors while not excluding others who expressed skepticism about the credibility of police officers, such as the woman on the first panel who stated that “sometimes the police [were] not [doing their job],” and “could be forceful . . . if . . . threatened,” and the woman on the second panel who said she'd “seen things go both ways” with the police. * * *

The court failed to follow the three-step Batson protocol. Although the prosecutor furnished some explanations for the strikes, he gave them only as to Hewitt and Prosser, not Lortey. Even if those explanations were accepted as facially neutral, the court was obliged to continue on to step three and afford defense counsel the opportunity to show that the prosecutor's stated reasons for the strikes were pretextual. Defense counsel was never given the opportunity to argue that the prosecutor's explanations were a pretext for discrimination. The court improperly combined steps and deviated from the Batson protocol, which cannot be considered harmless or nonprejudicial to defendant … . People v Watson, 2016 NY Slip Op 03688, 1st Dept 5-10-16

CRIMINAL LAW (COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)/APPEALS (CRIMINAL LAW, COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)/JURORS (CRIMINAL LAW, COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)/BATSON CHALLENGES (COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)

, ,

APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a partial dissent, determined appeals as of right, irrespective of the issues raised, should not be dismissed because the appellant has been deported. Permissive appeals, such as an appeal of the denial of a motion to vacate a conviction, are, however, subject to discretionary dismissal because the appellant has been deported:

… [W]e conclude that this Court’s holding in Ventura [17 NY3d 675] prohibits an intermediate appellate court from exercising its discretion to dismiss a pending direct appeal on the ground that the defendant has been involuntarily deported, regardless of the appellate contentions raised by the defendant. …

We reach a different conclusion with respect to [a] pending permissive appeal. Our holding in Ventura was based upon a criminal defendant’s fundamental right to a direct appeal granted by CPL 450.10. That statute has no application, however, in the context of permissive appeals. Rather, CPL 450.15 governs an appeal from an order denying a CPL 440.10 motion to vacate a judgment, and provides that a certificate granting leave to appeal must be obtained pursuant to CPL 460.15 (see CPL 450.15 [1]). In Ventura, this Court spoke of a criminal defendant’s “absolute right,” “statutory right,” “fundamental right,” and “basic entitlement” to appellate consideration of a direct appeal … . A defendant has no such fundamental right or basic entitlement to appeal where the defendant must seek permission to appeal to the intermediate appellate court pursuant to CPL 450.15. …

Where an intermediate appellate court has permissive jurisdiction over a pending appeal, the intermediate appellate court retains its discretion to dismiss the pending permissive appeal due to the defendant’s involuntary deportation. People v Harrison, 2016 NY Slip Op 03547, CtApp 5-5-16

CRIMINAL LAW (APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)/APPEALS (CRIMINAL, APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)/IMMIGRATION (CRIMINAL LAW, APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)/DEPORTATION (CRIMINAL LAW, APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)

,

PROBABLE CAUSE TO ARREST SUPPORTED BY THE RECORD.

The Court of Appeals noted that its review of whether there was probable cause for arrest, a mixed question of fact and law, is limited to whether there is support for a probable-cause finding in the record. Here the police were conducting surveillance on a target drug dealer. The police observed defendant take a bag from the target’s car, which was deemed sufficient to provide probable cause to arrest:

After a Darden hearing … , Supreme Court found that the confidential information had given the police “cause to believe” that the surveillance target was engaged in “drug activity.” Insofar as a Darden hearing is held to ensure “that the confidential informant both exists and gave the police information sufficient to establish probable cause” … , it may be inferred from the Darden hearing court’s ruling, which was adopted by the suppression court for the purpose of determining probable cause, that the confidential information was not stale by the time of defendant’s arrest.

Furthermore, the officer’s justified belief that the surveillance target was trafficking in narcotics, together with the manner in which the bag was removed from the car, support the lower courts’ conclusion that the police had probable cause to arrest defendant for criminal possession of a controlled substance. Record support for probable cause may be found on the basis of “indicia of a drug transaction” known to “an experienced officer . . . trained in the investigation and detection of narcotics,” which include “handl[ing] [an] unidentified object in a manner typical of a drug sale” … . People v Joseph, 2016 NY Slip Op 03416, CtApp 5-3-16

CRIMINAL LAW (PROBABLE CAUSE TO ARREST SUPPORTED BY THE RECORD, REVIEW BY COURT OF APPEALS)/APPEALS (COURT OF APPEALS REVIEW, CRIMINAL LAW, PROBABLE CAUSE TO ARREST SUPPORTED BY THE RECORD)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy