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Even Though the People Indicated They Were Not Ready for Trial After Filing a Certificate of Readiness, the Presumption the Statement of Readiness Was Accurate and Truthful When Made Was Not Rebutted/How to Interpret a Plurality Opinion by the Court of Appeals Explained

The First Department determined the People’s off-calendar statement of readiness was not illusory and, therefore, the defendant’s speedy-trial motion was properly denied. The First Department explained how it interpreted the Court of Appeals decision in People v Sibbles, 22 NY3d 1174, which included two three-judge concurrences, one by Judge Lippman and one by Judge Graffeo:

The three judge concurrence by Chief Judge Lippman “would hold that, if challenged, the People must demonstrate that some exceptional fact or circumstance arose after their declaration of readiness so as to render them presently not ready for trial” at the next court appearance after filing the certificate (22 NY3d at 1178). Chief Judge Lippman found that the People’s desire to strengthen their case did not satisfy this requirement.

The three judge concurrence by Judge Graffeo “would decide th[e] case on a narrower basis” (22 NY3d at 1179). While recognizing established precedent that the requirement of actual readiness under CPL 30.30 “will be met unless there is proof that the readiness statement did not accurately reflect the People’s position'”(id. at 1180, quoting People v Carter, 91 NY2d 795, 799 [1998]) and that “there is a presumption that a statement of readiness is truthful and accurate” (22 NY3d at 1180), Judge Graffeo found the statement of readiness “illusory” because “[t]he People initially declared that they were ready for trial on February 22 but within days sought copies of the injured officer’s medical records,” admitted at the next calendar call that they “were not in fact ready to proceed because they were continuing their investigation” and that they “needed to examine the medical records to decide if they would pursue introduction of the records into evidence at trial”, and then “gave no explanation for the change in circumstances between the initial statement of readiness and the[ir] subsequent admission that the[y] … were not ready to proceed without the medical records” (22 NY3d at 1181).

Following analogous precedent pertaining to plurality opinions by the United States Supreme Court, we apply the narrower approach of Judge Graffeo, which leaves intact well- settled law that a post-certificate assertion that the People are not ready does not, by itself, vitiate the previously filed certificate of readiness … . * * *

[Here], unlike, Sibblies, there is no “proof that the readiness statement did not accurately reflect the People’s position,” so as to render the prior statement of readiness illusory (Sibblies, 22 NY3d at 1180 …). Rather, defense counsel merely speculated that the certificate of readiness was illusory because the People announced that they were not ready at the next court appearance after it was filed, which is insufficient to rebut the presumption that the certificate of readiness was accurate and truthful … . People v Brown, 2015 NY Slip Op 02042, 1st Dept 3-17-15

 

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Sua Sponte Rulings Do Not Become the Law-of-the-Case and Do Not Bind an Appellate Court

The Second Department noted that a sua sponte determination does not become the law-of-the-case  and does not bind the appellate court:

Supreme Court determined that, pursuant to the law-of-the-case doctrine, it was bound by the prior Supreme Court order to hold that [a nonparty] was a bona fide purchaser of the subject property. On that ground, the Supreme Court concluded that, “[h]aving failed to obtain a stay pursuant to CPLR 5519 to prevent the property from being sold, [defendant] [was] relegated to an action for money damages, and would not be able to recover the real property” … . However, since the parties had not litigated the sua sponte determination as to [the nonparty’s] status, application of the doctrine of law of the case was improper … . In any event, this Court is not bound by the Supreme Court’s prior determination finding [the nonparty] to be a bona fide purchaser and may reach the merits of that issue … . Debcon Fin. Servs., Inc. v 83-17 Broadway Corp., 2015 NY Slip Op 01920, 2nd Dept 3-11-15

 

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Extent of Court Review of Town Board’s Assessment of an Environmental Impact Statement Under the State Environmental Quality Review Act (SEQRA) Explained

The Second Department determined the Town Board had properly adopted the Final Generic Environmental Impact Statement (FEGIS) and Findings Statement re: an airport master plan (dealing with noise).  The Second Department explained the court’s review powers:

Judicial review of an agency determination under the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA) is limited to determining whether the challenged determination was affected by an error of law, or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure … . Courts may review the record to determine whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination … . ” [I]t is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively'” … .

Here, the Town Board of the Town of East Hampton (hereinafter the Town Board) fulfilled its obligations under SEQRA by taking a hard look at potential noise impacts of the proposed actions and made a reasoned elaboration of the basis for its determination in the Final Generic Environmental Impact Statement (hereinafter FGEIS), which thoroughly analyzed noise data and potential noise mitigation based upon noise averaging methodology along with single event noise data.  Matter of Committee to Stop Airport Expansion v Wilkinson, 2015 NY Slip Op 01941, 2nd Dept 3-11-15

 

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Criteria for Administrative Expungement of a Report of Child Abuse or Maltreatment Explained

In affirming the dismissal of a petition seeking expungement of a “child abuse or maltreatment report” maintained by the NYS Central Register of Child Abuse or Maltreatment, the Second Department explained the relevant analytical criteria:

At an administrative expungement hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established by a preponderance of the evidence … . “It is the function of the administrative agency, not the reviewing court, to weigh the evidence or assess the credibility of the witnesses” … .

Judicial review of a determination that a report of maltreatment has been substantiated is limited to whether the determination is supported by substantial evidence in the record … . Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … .

To establish that maltreatment occurred, the agency must show that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of a parent or other person legally responsible for his or her care to exercise a minimum degree of care … .  Matter of Iacono v New York State Cent. Register of N.Y. State Off. of Children & Family Servs. 2015 NY Slip Op 01802, 2nd Dept 3-4-15

 

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Municipal Action Re: a Mining Permit Not Ripe for Review

In finding that the issue was not ripe for review, the Third Department explained the relevant analytical criteria:

A municipal action is ripe for judicial review if it “impose[s] an obligation, den[ies] a right or fix[es] some legal relationship as a consummation of the administrative process” … . Such a determination requires a “pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury” … .

* * * … [A]ny harm to petitioner at this stage is merely speculative, may be ameliorated by further proceedings and is insufficient to warrant judicial review… . Matter of Troy Sand & Gravel Co Inc v Town of Nassau, 2015 NY Slip Op 01517, 3rd Dept 2-19-15

 

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Jury’s Conclusion the School Negligently Supervised Students But the Negligent Supervision Was Not the Proximate Cause of Plaintiff’s Injuries Was Supported by the Evidence/Inconsistent Verdict Issue Not Preserved Because Not Raised Before the Jury Was Discharged

The Second Department noted that the issue whether the jury’s conclusion that the school district negligently supervised students who assaulted plaintiff but that the negligent supervision was not the proximate cause of plaintiff’s injuries was not preserved for appeal because no objection to the verdict was raised before the jury was discharged.  The court further noted that the jury’s conclusion was based upon a fair interpretation of the evidence (and therefore did not constitute an inconsistent verdict):

The plaintiffs contend that the jury verdict finding that the defendant … School District … negligently supervised certain students who assaulted the plaintiff …, but that such negligence was not a proximate cause of his injuries, is inconsistent and contrary to the weight of the evidence. Since the plaintiffs did not raise the issue of the claimed inconsistent jury verdict before the jury was discharged, that issue is not preserved for appellate review … . Contrary to the plaintiffs’ further contention, the jury verdict was not against the weight of the evidence. The jury’s finding that, while the School District negligently supervised these students, such negligence was not a proximate cause of [plaintiff’s] injuries, was based on a fair interpretation of the evidence… . LaMacchia v City of New Rochelle, 2015 NY Slip Op 01422, 2nd Dept 2-18-15

 

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Under the Facts, the Judge’s Failure to Mention the Imposition of Post-Release Supervision as Part of the Sentence at the Time of the Plea Was an Error that Must Be Preserved by Objection (No Objection Made)

The Court of Appeals, over a dissent, determined that defendant, under the facts, was precluded from raising the judge’s failure to inform defendant at the time of defendant’s plea that post-release supervision (PRS) would be part of defendant’s sentence because the error was not preserved by objection.  Here defendant and/or defendant’s counsel had been informed of the imposition of PRS both before and after the plea:

In People v Catu [4 NY3d 242], this Court held that “the trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” … . A court is not required to engage in any particular litany when allocuting a defendant, but the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant … . We found that “[p]ostrelease supervision is significant” and that a defendant “must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntary and intelligently choose among alternative courses of action” … .

Defendant claims that his plea was not knowing, voluntary and intelligent under Catu because County Court failed to reiterate the term of PRS during the plea colloquy. We hold that, under the circumstances of this case, defendant was required to preserve his claim.

Defendant and his attorney had three opportunities to object to the imposition of PRS: at the initial scheduled sentencing July 15, at his sentencing on July 28, and at the appearance on August 17. Neither defendant nor defense counsel expressed any objection to the imposition of PRS. Because defendant had ample opportunity to raise an objection to the PRS component prior to and during these proceedings, defendant was required to preserve his claim … . People v Crowder, 2015 NY Sip Op 01481, CtApp 2-17-15

 

Determinative, Purely Legal Arguments Raised for the First Time on Appeal May Be Considered by the Appellate Court

In the context of a mortgage foreclosure action, the First Department noted that arguments raised for the first time on appeal may be considered if the issues are determinative and present purely legal arguments without raising new facts.  Bank of NY v Arthur, 2015 NY Slip Op 01392, 1st Dept 2-17-15

 

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Motion for a Change of Venue Can Be Entertained in “Dangerous Sex Offender” Trials and Hearings Under the Mental Hygiene Law/Non-Final Order Which Necessarily Affects the Final Order Is Appealable

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that “dangerous sex offender” trials and hearings under the Mental Hygiene Law are subject to the change of venue procedures under the CPLR.  Here, after the motion for a change of venue was denied, the petitioner refused to attend the hearing.  The Court of Appeals noted that the denial of the motion to change venue, although a non-final order, was appealable because it necessarily affected the final order:

Mental Hygiene Law § 10.08 (e) provides that “[a]t any hearing or trial pursuant to the provisions of this article, the court may change the venue of the trial to any county for good cause, which may include considerations relating to the convenience of the parties or witnesses or the condition of the respondent.”  * * * The construction of the provision is somewhat ambiguous, in that, if the legislature intended to restrict a change of venue to article 10 trials, the reference to “any hearing or trial” would appear to be superfluous. We see no need to read a restriction into the statute limiting annual review hearings solely to the few counties where secure treatment facilities are located.

However, petitioner failed to establish good cause for the change of venue. As noted above, the statute provides that good cause “may include considerations relating to the convenience of the parties or witnesses or the condition of the respondent” (Mental Hygiene Law § 10.08 [e]). The affidavit submitted in support of the motion did urge, generally, that it would be inconvenient and burdensome for unnamed family members and other potential witnesses to travel to Oneida County, but failed to identify a single witness that would testify on petitioner’s behalf. Nor did the affidavit set forth the subject of any proposed testimony — let alone identify any information that would be potentially relevant to the issue of whether petitioner remained a dangerous sex offender in need of confinement. Therefore, the motion for a change of venue was properly denied. Matter of Tyrone D v State of New York, 2015 NY Slip Op 01301, CtApp 2-13-15

 

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Appeal Should Not Have Been Dismissed as Moot Because the Underlying Order of Protection Had Expired—There Are Significant Negative Consequences of the Issuance of an Order of Protection Which May Affect Appellant in the Future

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the appeal by respondent, who had been found to have committed a Family Offense and against whom an order of protection had been issued, should not have been dismissed as moot because the order of protection had expired.  The Court of Appeals explained that the issuance of the order of protection could have significant negative future consequences for the respondent:

“[i]n general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” …. The ability of an appellate decision to directly and immediately impact the parties’ rights and interests is among the most important aspects of the mootness analysis, for otherwise the analysis might turn on inchoate or speculative matters, making mootness an unwieldy doctrine of a thousand “what ifs.” On the other hand, even where the resolution of an appeal may not immediately relieve a party from a currently ongoing court-ordered penalty or obligation to pay a judgment, the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal … .

In this case, the expiration of the order of protection does not moot the appeal because the order still imposes significant enduring consequences upon respondent, who may receive relief from those consequences upon a favorable appellate decision. Because the order of protection on its face strongly suggests that respondent committed a family offense, the court in a future criminal case or Family Court proceeding would likely rely on the order to enhance a sentence or adverse civil adjudication against respondent. ** * *In the face of the substantial probability that the order of protection will prompt severely deleterious future legal rulings against respondent, an appellate decision in his favor will directly vindicate his interest in avoiding that consequence of the order.

The order of protection has other potential legal consequences that render it susceptible to appellate review. For example, in a future legal matter, an opposing party might be permitted to use the order of protection to impeach respondent’s credibility …. . Furthermore, since the order of protection remains in a police computer database, albeit not in an active file (see Executive Law §§ 221-a [1]; 221-a [6]; see also 9 NYCRR 486.2 [g]), respondent may face additional law enforcement scrutiny and an increased likelihood of arrest in certain encounters with the police (see 9 NYCRR 486.3 [n] [declaring information obtained from the database to be relevant to the decision to arrest an individual]).[FN2]

Beyond its legal consequences, the order of protection places a severe stigma on respondent, and he can escape that stigma by prevailing on appeal … . Matter of Veronica P v Radcliff A, 2015 NY Slip Op 01300, CtApp 2-13-15

 

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