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Father, Who Had Not Been Informed of the Birth of His Child Until After the Child Was Adopted, Was Properly Awarded Custody of the Child

The Third Department affirmed Family Court’s rulings that: the father’s consent to the adoption of his child was required; the father had preserved his right to contest the adoption of his child; and custody of the child is awarded to the father.  Mother put the child up for adoption and the child was adopted before mother informed father she had given birth to his child.  The Third Department heard the appeal despite problems with the notice of appeal and the absence of the Family Court hearing transcript. No one contested the factual findings made by Family Court:

“The father of a child born out-of-wedlock is entitled to full protection of his relationship with the child, including the right to deny consent to an adoption at birth by strangers, only if he ‘assert[s] his interest promptly . . . [and] manifest[s] his ability and willingness to assume custody of the child'” … . Evaluation of the father’s conduct includes, among other things, factors such as “his public acknowledgment of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the child, and other factors evincing a commitment to the child” … . Family Court’s many factual findings included that: the father had paid up to 90% of the household expenses when the mother resided with him; the mother was not visibly pregnant while living with him; the mother did not know she was pregnant until she had moved to New York City; FIA [the adoption agency] made no reasonable effort to notify the father; the father was first notified about the pregnancy and child on May 6, 2014; he was unable to contribute to pregnancy expenses through no fault of his own because he had no knowledge thereof; the mother was urged by FIA to decline to identify the father of her child; and, once the father became aware of the child, he filed a paternity petition within about 10 weeks and then a custody petition and he did so despite difficult logistics regarding filing (he lived in South Carolina, the child had been born in New York City, the adoption was pending in Albany County), as well as a lack of legal representation by counsel. The father submitted an affidavit stating that, after learning of some uncovered costs of the birth, he was making arrangements to pay those costs. He had a job and residence, and was able to take immediate custody of the child. In light of the uncontested facts found by Family Court, as well as the other relevant proof in the record, we are unpersuaded that Family Court erred in determining that the father adequately preserved his right to contest the adoption of his child … . Matter of Isabella TT. (Dalton C.), 2015 NY Slip Op 02838, 3rd Dept 4-2-15

 

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Appeal Waiver Invalid/Court Erroneously Told Defendant His Request for a Hearing on the Persistent Violent Felony Offender Tolling Calculations Violated the Plea Agreement—Matter Remitted for a Hearing

The Fourth Department determined defendant’s waiver of appeal was invalid and defendant was entitled to a hearing on the time-calculations associated with the “persistent violent felony offender” status.  The ten-year period between the current felony and the prior felony is tolled by any periods of incarceration.  Defendant objected to the tolling calculations made by County Court. County Court effectively coerced defendant to agree to its tolling calculations by erroneously telling defendant his request for a hearing violated the plea agreement:

…[T]he waiver of the right to appeal is invalid inasmuch as there is no indication in the record that defendant understood that the waiver of the right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty … . We further agree with defendant that this case should be remitted for a hearing on the issue whether he is a persistent violent felony offender. A persistent violent felony offender is one who is convicted of a violent felony offense after having previously been subjected to two or more predicate violent felony convictions (see § 70.08 [1] [a]). The sentence upon the predicate violent felony convictions “must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted” (§ 70.04 [1] [b] [iv]). However, “[i]n calculating the ten year period . . . , any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration” (§ 70.04 [1] [b] [v]).

Here, defendant admitted that he was convicted of two prior violent felonies, but objected to the tolling periods that were computed by County Court pursuant to Penal Law § 70.04 (1) (b) (v) and requested a hearing. After some discussion with the court, defendant conceded that the court’s computations were correct, essentially waiving the necessity for a hearing. …[H]is waiver of the hearing was not effective because it was the product of impermissible coercion by the court. The court indicated that it could consider defendant’s request for a hearing to be a violation of the plea agreement, but that was not accurate. “While [the court] did advise defendant during the plea hearing that he was going to be sentenced as a [persistent violent] felony offender, it never specifically instructed him that admitting such [persistent violent] felony offender status was a condition of the plea agreement and that his failure to do so would result in a more severe sentence” … . People v Vanhooser, 2015 NY Slip Op 02640, 4th Dept 3-27-15

 

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Board of Commissioner’s Rejection of Hearing Officer’s Award of Supplemental Benefits Was Supported by Substantial Evidence—“Substantial Evidence” Defined and Review Criteria Explained

The Second Department determined the Board of Commissioners of the Greenville Fire District properly rejected a hearing officer’s recommendation that the petitioner be awarded supplemental benefits pursuant to the General Municipal Law. The court explained its review powers and the evidentiary requirements:

“Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence” … . “Substantial evidence means more than a mere scintilla of evidence,’ and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides” … . “When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists'” … . “Moreover, where there is conflicting expert testimony, in making a General Municipal Law § 20-a determination, a municipality is free to credit one physician’s testimony over that of another'” … . “Thus, even if conflicting medical evidence can be found in the record,’ the municipality’s determination, based on its own expert’s conclusions, may still be supported by substantial evidence” … .

Here, the determination of the Board of Commissioners of the Greenville Fire District (hereinafter the Board), which rejected the recommendation of a hearing officer and denied the petitioner’s application for benefits pursuant to General Municipal Law § 207-a(2), was supported by substantial evidence … . The Board was entitled to make a finding contrary to the hearing officer’s recommendation, as long as substantial evidence supported the determination … . The Board was free to credit the expert of the Greenville Fire District (hereinafter the Fire District) over the petitioner’s expert, as it did, so long as testimony of the Fire District’s expert was consistent and supported by the medical evidence … . Since the Board’s determination was supported by substantial evidence, we confirm the determination and deny that branch of the petition which was to annul the determination … . Matter of Delgrande v Greenville Fire Dist., 2015 NY Slip Op 02474, 2nd Dept 3-25-15

 

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Appeal Waiver Did Not Encompass Youthful Offender Status/Defendant Should Have Been Adjudicated a Youthful Offender

The Fourth Department determined the defendant did not waive his right to appeal the court’s failure to adjudicate him a youthful offender and further determined defendant should be so adjudicated:

… [T]he waiver [of appeal] does not encompass defendant’s contention regarding the denial of his request for youthful offender status, inasmuch as “[n]o mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy” … .

We agree with defendant that he should have been afforded youthful offender status. Defendant was 16 years old at the time of the offense and committed the offense when he and his two friends were walking to a park, saw a vehicle with the keys in the ignition, and wondered what it would be like to steal the vehicle. Defendant expressed remorse for his actions, which we conclude were the actions of an impulsive youth rather than a hardened criminal (see People v Drayton, 39 NY2d 580, 584, rearg denied 39 NY2d 1058). Thus, under the circumstances, we modify the judgment as a matter of discretion in the interest of justice by adjudicating defendant a youthful offender … . People v Angel T.C., 2015 NY Slip Op 02296, 4th Dept 3-20-15

 

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Application for Variance Properly Denied—Courts’ Review Powers Re: Actions of Zoning Board Explained

The Fourth Department determined the zoning board properly denied the petitioner’s application for a variance and explained the courts’ review powers in this context:

It is well settled that the determination whether to grant or deny an application for an area variance is committed to the broad discretion of the applicable local zoning board … . Consequently, when reviewing the denial of an application for an area variance, “[j]udicial review [of such a determination] is . . . limited to the issue whether the action taken by the [board] was illegal, arbitrary, or an abuse of discretion’ . . . [, and the b]oard’s determination should therefore be sustained so long as it has a rational basis and is supported by substantial evidence’ ” … . A reviewing court may not substitute its judgment for that of a local zoning board …, “even if there is substantial evidence supporting a contrary determination” … .

Here, the record establishes that respondent reviewed the appropriate statutory factors in making its determination (see General City Law § 81-b [4] [b]), and concluded that the application should be denied because, inter alia, the variances would cause an undesirable change to the character of the neighborhood, the variances are substantial, and petitioners’ hardship is self-created (see § 81-b [4] [b] [i], [iii], [v]). Matter of People, Inc. v City of Tonawanda Zoning Bd. of Appeals, 2015 NY Slip Op 02257, 4th Dept 3-20-15

 

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Sufficient Factual Allegations of Malpractice Not Made/Denial of Motion to Reargue Appealable as of Right Because the Merits Were Dealt with By the Motion Court

The Third Department, in affirming the dismissal of a legal malpractice complaint, determined that the fact that the motion court dealt with the merits of a motion to reargue while denying it rendered the denial appealable as of right:

As a general proposition, “no appeal lies from the denial of a motion to reargue” … . Where, however, the court actually addresses the merits of the moving party’s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied … . Accordingly, Supreme Court’s April 2013 order is appealable as of right (see CPLR 5701 [a] [2] [viii]…). * * *

To survive defendants’ motion to dismiss, it was incumbent upon plaintiff to, among other things, “plead specific factual allegations establishing that but for counsel’s deficient representation, there would have been a more favorable outcome to the underlying matter” … , i.e., an earlier — and successful — award of partial summary judgment on the issue of liability. This plaintiff failed to do. Rodriguez v Jacoby & Meyers, LLP, 2015 NY Slip Op 02151, 3rd Dept 3-19-15

 

 

No Appeal Lies (as of Right) from an Order Which Does Not Decide a Motion Made on Notice

The Second Department noted that no appeal lies of right from an order which does not decide a motion made on notice (CPLR 5701(a)(2)).  Angelova v Ruchinsky, 2015 NY Slip Op 02081, 2nd Dept 3-18-15

 

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Violation of Confrontation Clause Was Harmless Error

The Second Department determined the admission of hearsay DNA evidence (a report made by an analyst who did not testify), although it violated the Confrontation Clause, was harmless error because the inadmissible evidence was cumulative:

The defendant correctly contends that his rights under the Confrontation Clause of the Sixth Amendment were violated when the Supreme Court admitted a nontestifying DNA analyst’s report linking the defendant to DNA evidence recovered at the crime scene … .

“Confrontation Clause violations are subject to a constitutional harmless error analysis” … . “Constitutional error requires reversal unless the error’s impact was harmless beyond a reasonable doubt'” … . “This determination is based on a review of the entire record”… ..

Here, in addition to the erroneously admitted report, the People presented evidence directly linking the defendant to the burglary. Specifically, the nontestifying analyst’s supervisor testified that she herself analyzed the raw data from the evidence collected at the crime scene and the DNA collected from the defendant and drew her own conclusions. Thus, the erroneously admitted report was cumulative, as the expert who did testify reached that same conclusion after comparing the same raw data relied upon by the nontestifying analyst. Since there was no reasonable possibility that the erroneously admitted report contributed to the defendant’s conviction, the error was harmless beyond a reasonable doubt … . People v Cartagena, 2015 NY Slip Op 02136, 2nd Dept 3-18-15

 

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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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