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ORDER WHICH IS NOT ISSUED PURSUANT TO A MOTION ON NOTICE IS NOT APPEALABLE, A MOTION TO VACATE IS THE PROPER PROCEDURE.

 

The Third Department, reversing Supreme Court, noted that an order which is not issued pursuant to a motion on notice is not appealable. The proper procedure is to move to vacate the order and, if the motion is denied, appeal the denial:

… [P]laintiff followed the appropriate procedure in moving to vacate the … order. Contrary to Supreme Court’s determination, plaintiff could not have challenged the order by taking a direct appeal. As the order was made in response to plaintiff’s letter and did not decide a motion made upon notice, it was not appealable as of right (see CPLR 5701 [a] [2]…). Such an order is properly challenged by moving on notice for vacatur, as plaintiff did here, and then by taking an appeal as of right if the requested relief is denied (see CPLR 5701 [a] [3]…). Thus, the court should have addressed the merits of plaintiff’s motion to vacate the … order, and the application should not have been denied based upon the standards applicable to motions pursuant to CPLR 5015 and 2221. Novastar Mtge., Inc. v Melius, 2016 NY Slip Op 08928, 3rd Dept 12-29-16

 

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WAIVER OF APPEAL WAS SUFFICIENT, APPELLATE DIVISION REVERSED.

The Court of Appeals, reversing the appellate division, determined defendant’s waiver of appeal was valid. The lower court judge first went through the rights waived by a guilty plea. Only then did the judge turn to the waiver of appeal:

Here, the court separately explained to defendant the panoply of rights normally [*3]forfeited upon a guilty plea. After ensuring that defendant understood those rights, the judge next had defendant allocute to the facts of the crimes. Only after the allocution did the court turn to the waiver of appeal. During the oral colloquy defendant stated he understood that he was “waiving [his] right to appeal” and “that this conviction, or these convictions will be final, that a court will not review what we have done here.” This verbal waiver was accompanied by a detailed written waiver which stated, among other things, that “the right to appeal is separate and distinct from the other rights automatically forfeited upon a plea of guilty.” Thus, the record sufficiently demonstrates that defendant knowingly and intelligently waived his right to appeal. People v Bryant, 2016 NY Slip Op 08488, CtApp 12-20-16

RIMINAL LAW (WAIVER OF APPEAL WAS SUFFICIENT, APPELLATE DIVISION REVERSED)/APPEALS (CRIMINAL LAW. WAIVER OF APPEAL WAS SUFFICIENT, APPELLATE DIVISION REVERSED)/WAIVER OF APPEAL (CRIMINAL LAW. WAIVER OF APPEAL WAS SUFFICIENT, APPELLATE DIVISION REVERSED)

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SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED.

The First Department affirmed defendant’s conviction because he pled guilty before the court ruled on his suppression motion. Suppression therefore could not be considered on appeal. However, the court determined there was no justification for a strip search and warrantless body-cavity search:

… [T]here is merit to defendant’s claim that the police lacked the requisite reasonable suspicion to conduct a strip search. The record showed only that defendant was arrested during a buy-and-bust operation in a drug-prone location. Defendant was not observed reaching into his pants and no drugs were found on his clothing. “The police officers’ generalized knowledge that drug sellers often keep drugs in their buttocks, and the fact that no drugs were found in a search of defendant’s clothing [a]re insufficient” … .

There is also merit to defendant’s claim that the strip and visual body cavity search were not conducted in a reasonable manner and without a warrant or exigent circumstances. The record shows that defendant had his clothing torn from his body and was searched in the presence of four or five officers, belying the imperative to seek out “utmost privacy, and in the presence of only those members of the service reasonably necessary to conduct the search” to “achieve a balance between the privacy and personal dignity concerns of the [arrestee],” as set forth in the provisions of the NYPD Patrol Guide (Procedure No. 208.5[C][4] [2013]) concerning strip search procedures. The violence of the search — which resulted in physical injury to defendant requiring transfer to the hospital — was unnecessary particularly given that defendant was not being charged with a violent offense.

Further, the record indicates that defendant was very likely subjected to a warrantless [*2]manual cavity search of his rectum … . Potential dissemination or destruction of drugs was not a concern where defendant was already in a secure cell with five officers watching him … . People v Durham, 2016 NY Slip Op 08438, 1st Dept 12-15-16

CRIMINAL LAW (SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/APPEALS (CRIMINAL LAW, SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/EVIDENCE (CRIMINAL LAW, SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/SEARCH AND SEIZURE (SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/STRIP SEARCH (SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/BODY CAVITY SEARCH (SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)

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DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT.

The Court of Appeals determined Supreme Court erred when it held petitioner (Henry, an inmate charged with participating in an assault) had not preserved evidentiary issues for review. Henry had requested certain documents and witness-testimony which were not provided. The Court of Appeals found the denial of Henry’s requests was preserved despite his failure to specifically object during the hearing:

An inmate charged with violating a prison regulation is entitled to due process protections which include a right “to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals” … . Contrary to the conclusion of the Appellate Division, Henry cannot be deemed to have waived his challenges simply because he failed to make specific objections at the hearing.

In sum, the record shows that Henry plainly requested access to specific documents and witnesses, and the Hearing Officer denied some of those requests. In light of the denial of Henry’s requests, the courts below erred in determining that Henry’s failure to specifically object to the Hearing Officer’s unfavorable rulings constituted a failure to preserve those rulings for judicial review. Matter of Henry v Fischer, 2016 NY Slip Op 08395, CtApp 12-15-16

 

DISCIPLINARY HEARINGS (INMATES) (DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT)/EVIDENCE (DISCIPLINARY HEARINGS (INMATES), DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT)/APPEALS (DISCIPLINARY HEARINGS (INMATES), DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT)

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NARROW EXCEPTIONS TO PRESERVATION REQUIREMENT DID NOT APPLY, DEFENDANT DID NOT MOVE TO WITHDRAW HIS PLEA.

The Court of Appeals determined defendant’s failure to move to withdraw his plea or object precluded review:

Defendant’s challenges to the validity of his guilty plea are unpreserved and unreviewable by this Court. Defendant had “an opportunity to seek relief from the sentencing court” by moving to withdraw his plea based on his alleged justification defense, and therefore the “narrow exception to the preservation requirement” does not apply … . Defendant said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a justification defense, and therefore People v Lopez (71 NY2d 662, 666 [1988]) is inapplicable.

Defendant’s further contention that the court failed to advise him of the immigration consequences of his plea is also unpreserved for appellate review. The court informed defendant during the plea colloquy that if he was not a citizen, he could face deportation as a result of his guilty plea. Defendant therefore was informed before he pleaded guilty of the possibility that he could be deported as a result of his plea, and if he was confused about that issue, he was obligated to move to withdraw his plea on that ground before the sentencing court … . People v Pastor, 2016 NY Slip Op 08399, CtApp 12-15-16

 

CRIMINAL LAW (NARROW EXCEPTIONS TO PRESERVATION REQUIREMENT DID NOT APPLY, DEFENDANT DID NOT MOVE TO WITHDRAW HIS PLEA)/APPEALS (CRIMINAL LAW, NARROW EXCEPTIONS TO PRESERVATION REQUIREMENT DID NOT APPLY, DEFENDANT DID NOT MOVE TO WITHDRAW HIS PLEA)

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DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT’S INVOLUNTARY DEPORTATION.

The Court of Appeals determined defendant's direct appeal should not have been dismissed based upon defendant's deportation, even though there was no relationship between the matter on appeal and the deportation:

We recently … held “that [People v] Ventura [(17 NY3d 675 [2011])] prohibits intermediate appellate courts from dismissing pending direct appeals due to the defendant's involuntary deportation, regardless of the contentions raised by the defendant on appeal” … . We further explained that “[o]ur holding in Ventura did not depend upon any causal relationship between the defendant's conviction and deportation” … .

Here, the Appellate Term erred as a matter of law insofar as it granted the People's motion to dismiss defendant's direct appeal from his judgment of conviction because he was involuntarily deported. This error requires reversal. People v Morales, 2016 NY Slip Op 08397, CtApp 12-15-16

CRIMINAL LAW (DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT'S INVOLUNTARY DEPORTATION)/APPEALS (CRIMINAL LAW, DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT'S INVOLUNTARY DEPORTATION)/DEPORTATION (CRIMINAL LAW, DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT'S INVOLUNTARY DEPORTATION)

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MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE.

The Third Department reversed defendant’s murder conviction, finding it against the weight of the evidence. The victim, who died from blunt force trauma to the abdomen, was defendant’s two-year-old son. The forensic evidence placed the time of the injury during a period when defendant was not home. Contradictions in witness testimony rendered it too weak to support the conviction. The Third Department went through the trial evidence in detail. The evidence cannot be fairly summarized here. People v Taft, 2016 NY Slip Op 08123, 3rd Dept 12-1-16

CRIMINAL LAW (MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE)/APPEALS (CRIMINAL LAW, MURDER CONVICTION REVERSED, AGAINST THE WEIGHT OF THE EVIDENCE)

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BUYER NOT ENTITLED TO RETURN OF DEPOSIT, BUYER DID NOT COMPLY WITH THE MORTGAGE CONTINGENCY PROVISIONS OF THE PURCHASE AGREEMENT AND DID NOT ACT IN GOOD FAITH, APPELLATE COURT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO SELLERS.

The Second Department, reversing Supreme Court, searched the record and awarded summary judgment to the defendants-sellers in this action to recover the deposit for a home purchase. The court found the buyer did not comply with the mortgage contingency provisions of the purchase agreement and misled the sellers, not informing them of the rejection of his mortgage applications:

… [T]he Supreme Court erred in determining that the buyer had made a prima facie showing of entitlement to judgment as a matter of law. The correspondence submitted by the buyer on renewal demonstrated, among other things, that the seller agreed to the buyer’s initial request to extend the commitment date but refused to consider his request for a second extension of the commitment date until the buyer provided copies of his loan applications and declinations. Additionally, this new evidence demonstrated that when the buyer sought an extension of the commitment date, he did not advise the seller of the fact that he had already been rejected by more than one lender. Contrary to the buyer’s contention, the evidence demonstrated that the buyer failed to comply with several provisions of the mortgage contingency clause in the contract … , and acted in bad faith in obtaining an extension of the commitment date by misleading the seller about the fact that multiple lenders rejected his mortgage loan applications based on his “delinquent credit obligations” and the lenders’ inability to verify his income. * * *

This Court has the authority to search the record and award summary judgment to a nonmoving party with respect to issues that were the subject of the motion before the Supreme Court … . Under the unique and compelling circumstances of this case, and given the wealth of evidence which supports judgment in favor of the defendants, we search the record and award summary judgment to the defendants dismissing the complaint … . Kweku v Thomas, 2016 NY Slip Op 08051, 2nd Dept 11-30-16

 

REAL ESTATE (BUYER NOT ENTITLED TO RETURN OF DEPOSIT, BUYER DID NOT COMPLY WITH THE MORTGAGE CONTINGENCY PROVISIONS OF THE PURCHASE AGREEMENT AND DID NOT ACT IN GOOD FAITH, APPELLATE COURT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO SELLERS)/CONTRACT LAW (REAL ESTATE PURCHASE CONTRACT, BUYER NOT ENTITLED TO RETURN OF DEPOSIT, BUYER DID NOT COMPLY WITH THE MORTGAGE CONTINGENCY PROVISIONS OF THE PURCHASE AGREEMENT AND DID NOT ACT IN GOOD FAITH, APPELLATE COURT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO SELLERS)/APPEALS (SUMMARY JUDGMENT, BUYER NOT ENTITLED TO RETURN OF DEPOSIT, BUYER DID NOT COMPLY WITH THE MORTGAGE CONTINGENCY PROVISIONS OF THE PURCHASE AGREEMENT AND DID NOT ACT IN GOOD FAITH, APPELLATE COURT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO SELLERS)

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CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED.

The Third Department, in a full-fledged opinion by Justice Lynch, reversing Supreme Court, determined petitioner psychiatric hospital did not present sufficient evidence to support an order permitting involuntary treatment of respondent for schizophrenia. The Third Department heard the appeal as an exception to the mootness doctrine (the involuntary treatment order had already expired):

The exception to the mootness doctrine applies where an issue (1) could readily recur, (2) will typically evade review, (3) is of public importance and (4) represents a substantial and novel issue yet to be decided by this Court … . As pointed out in respondent’s brief, there were 322 applications for authorization to forcibly treat patients who are within the Third Department during 2014 — a contention that adequately demonstrates that proceedings of this nature will readily recur. Since the duration of these orders is tied into the treatment of the patient, who may, as here, be discharged before an appeal is even perfected, we agree that these proceedings do typically evade review … . And, certainly, the proceeding is of public importance because it implicates a patient’s “fundamental liberty interest to reject antipsychotic medication” … . * * *

What we find significant and novel here is how that standard is to be met by a petitioner and applied by the trial court with respect to the formulation of a medication treatment plan, and, for that reason, we will address the merits of the appeal .. .

The fundamental flaw established by this record is that the scope of medications authorized by Supreme Court was overbroad — a flaw conceded by petitioner. The order actually authorized the use of 28 various medications, including medications for symptoms and illnesses that respondent did not have. …

This point implicates the secondary problem presented in that Supreme Court failed to make specific findings on the record as to respondent’s capacity and the viability of the treatment plan. Matter of Lucas QQ. (Lucas QQ.), 2016 NY Slip Op 07904, 3rd Dept 11-23-16

 

MENTAL HYGIENE LAW (CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED)/APPEALS (CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED)/MOOTNESS DOCTRINE, EXCEPTION TO (APPEALS, CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED)/INVOLUTARY TREATMENT (MENTAL HYGIENE LAW, CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED)

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JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESERVED THE ISSUE FOR APPEAL.

The Third Department, reversing defendant’s conviction, determined the jury should have been instructed a witness (Perkins) was an accomplice as a matter of law. The defendant was charged and convicted of tampering with evidence (attempting to dispose of a jacket allegedly worn when defendant committed murder). It was alleged defendant instructed Perkins to get rid of his boots. The court noted that defendant’s request for the instruction, made during deliberations in response to a jury note, preserved the issue for appeal:

… [I]t is well settled that, “to be an accomplice for corroboration purposes, the witness must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crime[] for which the defendant is on trial” … . Thus, “a ‘witness is an accomplice as a matter of law only if the jury could reasonably reach no other conclusion but that he [or she] participated in the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged'” … .

Perkins’ testimony established that she picked defendant up at the same location that the jacket was later found and she subsequently disposed of defendant’s boots pursuant to his direction. In addition, she was arrested the same day as defendant, was charged with a felony, entered into a cooperation agreement with the People and, pursuant to that agreement, pleaded guilty to a misdemeanor in exchange for her truthful testimony against defendant. When defendant requested the accomplice charge, he stated that Perkins had pleaded guilty to “obstructing governmental administration . . . in exchange for not being prosecuted for tampering.” In light of this, we find that Perkins was an accomplice as a matter of law “since [s]he could have been (and was) charged with a crime ‘based upon some of the same facts or conduct’ upon which the charge[] against defendant [was] based” … . People v Whyte, 2016 NY Slip Op 07880, 3rd Dept 11-23-16

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)/EVIDENCE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)/APPEALS (CRIMINAL LAW, REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)