You are here: / Appeals
, ,

Failure to Move to Withdraw Plea, and Thereby Preserve the Issue for Appeal, Did Not Prohibit Appeal Here—Defendant Was Wrongly Informed by the Court and Counsel that the Denial of His Speedy Trial Motion Would Be Appealable After the Plea

The Third Department reversed Supreme Court and vacated defendant's guilty plea because defendant was wrongly informed by the court and counsel that his statutory speedy trial issue would survive the guilty plea (for appeal).  Under the circumstances, the court determined the failure to preserve the error by moving to withdraw the plea did not prohibit the appeal:

The People concede that an essential term of the plea bargain was the parties' understanding that defendant would retain the right to appeal the denial of his motion to dismiss on speedy trial grounds. Defendant was thereafter sentenced … . Defendant now appeals, arguing that his plea was involuntarily entered because his counsel and County Court erroneously informed him that a statutory CPL 30.30 claim would survive a plea of guilty.

Initially, we consider whether defendant was required to preserve this claim by appropriate postallocution motion (see CPL 220.60 [3]; 440.10). While a challenge to the validity of a guilty plea is generally not preserved for appellate review unless it was first raised in the trial court …, the Court of Appeals has recognized that “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required” … . Here a CPL 440.10 motion was unavailable because the error is clear from the face of the record; similarly a CPL 220.60 (3) motion was practically unavailable because “'defendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge'” … . Inasmuch as defendant–due to the inaccurate advice of his counsel and the trial court–did not know during the plea and sentencing proceedings that his statutory speedy trial claim would be forfeited as a direct consequence of his plea …, preservation was not required … . Moreover, under these circumstances, we agree with defendant that his guilty plea was not knowing, intelligent and voluntary and, accordingly, we reverse and vacate the plea … . People v Williams, 2014 NY Slip Op 09067, 3rd Dept 12-31-14


,

Trial Testimony Rendered an Indictment Count Duplicitous Requiring Dismissal/Sexual Abuse First Degree Is Not a Lesser Included Offense Re: a Course of Sexual Conduct Against a Child First Degree

The Third Department determined that an indictment-count rendered duplicitous by the trial testimony should have been dismissed, and an indictment-count was wrongly amended because the new charge was not a lesser included offense re: the original charge:

As pertinent here, the crime of criminal sexual act in the first degree requires proof that the defendant engaged in oral sexual conduct with another person who is less than 11 years old, and oral sexual conduct includes “contact between . . . the mouth and the vulva or vagina” (Penal Law § 130.00 [2] [a]; see Penal Law § 130.50 [3]). The challenged count charged defendant with this crime based upon the victim's grand jury testimony that defendant had caused the victim to use her mouth to make contact with defendant's vaginal area on a single occasion in 2004. At trial, however, the victim testified that defendant caused her to engage in this conduct multiple times during the pertinent time period, and that she did not remember any specific time when it had happened. … Unfortunately, the … testimony regarding multiple acts made it impossible to ascertain the particular act upon which the jury verdict was based. We are therefore required, despite the utterly heinous nature of the acts the victim described, to reverse defendant's conviction on this charge; further, the challenged count must be dismissed… . …

While the People may seek to amend an indictment at any time during trial to correct “matters of form, time, place, names of persons and the like,” such an amendment may not alter the theory of prosecution reflected in the evidence before the grand jury (CPL 200.70 [1]; see CPL 200.70 [2]…). Further, a court may submit to a jury a lesser included offense of a crime charged in an indictment provided that the elements of the two crimes are such that “it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct [and] there [is] a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” … . * * *

A crime is a lesser included offense of a charge of a higher degree only when in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the very same conduct, committing the lesser offense … . It is possible for a defendant to engage in an act of sexual conduct within the scope of the crime of course of sexual conduct against a child through an act of sexual contact, defined in pertinent part as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” (Penal Law § 130.00 [3]). However, a defendant could also commit an act of sexual conduct within the scope of the originally-charged offense by an act of “sexual intercourse, oral sexual conduct, anal sexual conduct, [or] aggravated sexual contact” (Penal Law § 130.00 [10]). The definitions of these acts do not include any element of intent; thus, it is possible for a defendant to commit an act that constitutes sexual conduct without the purpose of gratifying anyone's sexual desire that is a required element of sexual contact (see Penal Law § 130.00 [1], [2] [a], [b]; [11]…). Therefore, as it is possible to commit course of sexual conduct against a child in the first degree without also committing sexual abuse in the first degree by the same conduct, defendant's conviction on that charge must be reversed, and the amended indictment count must be dismissed … . People v Baker, 2014 NY Slip Op 09068, 3rd Dept 12-31-14


, ,

Worker’s Compensation Award Made by Arbitrator Pursuant to an Authorized Dispute Resolution Program Is Reviewed Under the Appellate Court’s Limited Arbitration-Review Powers (Not Under the Usual “Substantial Evidence” Standard)

The Third Department noted that a worker's compensation award made by an arbitrator pursuant to an authorized dispute resolution program is not reviewed by the Worker's Compensation Board and is reviewed by the appellate court under the court's limited arbitration-review powers:

Workers' compensation claims generally reach this Court on direct appeal from decisions of the Workers' Compensation Board and are subject to the substantial evidence standard of review (see Workers' Compensation Law § 23…). On the other hand, determinations of workers' compensation claims by arbitrators pursuant to an authorized alternative dispute resolution program are not reviewed by the Board, but may be appealed directly to this Court (see Workers' Compensation Law § 25 [2-c] [d]; 12 NYCRR 314.3 [b]). The substantial evidence standard does not apply to appeals of claims reaching us through the latter procedural route … . Instead, these cases are reviewed under the standard applicable to review of arbitration awards in general (see CPLR 7511).

Pursuant to that standard, courts have limited power to review an arbitrator's award … . Courts may vacate an arbitration award only if it was procured by “corruption, fraud or misconduct,” if the arbitrator was biased (CPLR 7511 [b] [1] [i]; see CPLR 7511 [b] [1] [ii]) or “if [the award] violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power” … . “[A]n arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice”…, nor should courts “otherwise pass upon the merits of the dispute” … . Matter of Diaz, v Kleinknecht Elec, 2014 NY Slip Op 0882, 3rd Dept 12-18-14

 

, , ,

Out-of-Court Statement Leading to Discovery of the Weapon Did Not Violate Defendant’s Right of Confrontation Because There Was No “Direct Implication” the Statement Involved the Defendant’s Possession of the Weapon

The Second Department determined that the right of confrontation issue was preserved for appeal because, although not raised directly, the issue was specifically determined by Supreme Court.  The court further determined that the testimony which alluded to an out-of-court statement leading to the discovery of a blood-covered knife did not violate defendant’s right of confrontation:

Contrary to the People’s contention, the Confrontation Clause (see US Const, 6th amend) issue is preserved for appellate review. While the issue was not “plainly present[ed]” to the Supreme Court …, the court’s ruling on the defendant’s objection demonstrates that the court specifically considered and resolved this issue … .

The defendant’s constitutional right to be confronted with the witnesses against him prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify and the defendant ha[s] had a prior opportunity for cross-examination” … . Here, however, Sergeant Tribble’s testimony and the subsequent testimony relating to the discovery of the weapon did not violate the Confrontation Clause, since there was no direct implication that the nontestifying witness told the police that the defendant possessed the knife, disposed of it, or tried to conceal it … . People v Richberg, 2014 NY Slip Op 08863, 2nd Dept 12-17-14

 

,

Only Parties “Aggrieved Within the Meaning of CPLR 5511” May Appeal

In finding that the appeal must be dismissed because the appellant was not “aggrieved within the meaning of CPLR 5511,” the Second Department explained the meaning of “aggrieved” in this context:

“A person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part,’ or, when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part'” … . Saccheri v Cathedral Props Corp, 2014 NY Slip OP 08821, 2nd Dept 12-17-14

 

,

Overruling Long-Standing Precedent, The Court of Appeals Determined It Has the Power to Review the Summary Denial of a 440 Motion for Abuse of Discretion/The Trial Court Abused Its Discretion in this Case/The Matter Was Sent Back for a Hearing

The Court of Appeals, in a full-fledged opinion by Judge Pigott, overruling long-standing precedent, held that the Court of Appeals has the power to review the summary denial of a motion to vacate a conviction based upon newly discovered evidence [Criminal Procedure Law (CPL) 440.10(1)(g)]. The defendant had already completed his sentence for rape when he had trial evidence—hairs and fingernail scrapings—subjected to DNA analysis.  The DNA results excluded the defendant.  The trial court summarily denied the motion to vacate and the Appellate Division affirmed.  The Court of Appeals reversed and sent the matter back for a hearing:

…[T]his Court is empowered to conduct a review of the lower courts’ summary denial of a defendant’s CPL 440.10 (1) (g) motion, and to determine whether that denial constituted an abuse of discretion as a matter of law without running afoul of the jurisdictional limitations set forth in NY Constitution, article VI, § 3 (a). Although we are prohibited from weighing facts and evidence in noncapital cases, we are not precluded from exercising our “power to determine whether in a particular judgmental and factual setting there has been an abuse of discretion as a matter of law” because, in so doing, we are not “passing on facts as such, but rather considering them to the extent that they are a foundation for the application of law” … . * * *

On this record, there is a dispute between defendant and the People concerning the reliability of the mtDNA testing, what the results of such testing actually mean and the weight to be given those results in light of the eyewitness identification. As such, defendant should have been afforded a hearing so he could have at the very least an opportunity of “proving by a preponderance of the evidence every fact essential to support [his] motion” (CPL 440.30 [6]), including his assertion that had such DNA evidence been presented at trial, he would have received a more favorable verdict. We reach this conclusion not by weighing the facts or the inferences drawn therefrom, but by examining the parties’ submissions and concluding that the People failed to counter defendant’s prima facie showing that he was entitled to a hearing. Not every CPL 440.10 motion brought by a defendant will warrant a hearing, nor will every summary denial of such a motion constitute an abuse of discretion, but where, as here, there is significant DNA evidence favorable to the defendant and the People proffer no admissible evidence in opposition to that evidence, defendant is, at the very least, entitled to a hearing on his motion. People v Jones, 2014 NY Slip Op 08760, CtApp 12-16-14

 

, ,

Defendant’s “Agency” Defense to a Drug Sale Addressed Under a “Weight of the Evidence” Review (Defense Was Disproved Beyond a Reasonable Doubt)

The Third Department noted that, although the defendant did not preserve his claim his conviction was not supported by legally sufficient evidence, an appellate court will review whether a conviction is supported by proof beyond a reasonable doubt under a “weight of the evidence” review.  The Third Department then went on to find the defendant’s agency defense had been disproved by the People beyond a reasonable doubt.  The court explained the agency defense:

To the extent that defendant contends that the underlying conviction is not supported by legally sufficient evidence, we note that defendant’s generalized motion to dismiss at the close of the People’s case was insufficient to preserve his present claim, i.e., that the People failed to disprove his agency defense beyond a reasonable doubt … . Additionally, defendant, who testified upon his own behalf, failed to renew this motion at the close of all proof; accordingly, defendant’s challenge to the legal sufficiency of the evidence is not preserved for our review … . “That said, our weight of the evidence [analysis] necessarily involves an evaluation of whether all elements of the charged crime[s] were proven beyond a reasonable doubt at trial” … .

Insofar as is relevant here, “[a] person is guilty of criminal sale of a controlled substance in the third degree when he or she knowingly and unlawfully sells . . . a narcotic drug” (Penal Law § 220.39 [1]). Defendant does not dispute that he sold a narcotic drug, i.e., cocaine, to the undercover deputy on the dates in question, but contends that he acted solely as the deputy’s agent in this regard and, at best, is guilty of criminal possession of a controlled substance … . Under the agency doctrine, a person who procures drugs solely as the agent of a buyer is not guilty of either criminal sale or of possession with the intent to sell … . “[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the [factfinder] to resolve on the circumstances of the particular case” … . Such a determination, in turn, may hinge upon a number of factors, including “the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction” … . Notably, profit does not necessarily equate with pecuniary gain; indeed, this Court has recognized that a defendant may stand to benefit from the underlying sale when such transaction was undertaken in the hopes of receiving either assistance in getting a job … in exchange for obtaining the requested drugs. People v Robinson, 2014 NY Slip Op 08672, 3rd Dept 12-11-14

 

, ,

Plaintiff Wife’s Waiver of Her Entitlement (Pursuant to a Divorce Stipulation) to Cost of Living Adjustments (COLA) to Maintenance Payments (By Acceptance of Checks With No COLA for Years) Was Withdrawn In 2008 When She Commenced Suit to Enforce the COLA Provision of the Stipulation

The Second Department determined that plaintiff wife had waived her entitlement, pursuant to the terms of a divorce stipulation, to cost of living adjustment (COLA) of her maintenance until she commenced an action to enforce the COLA provision of the stipulation. Plaintiff wife had waived the COLA by accepting maintenance payments (without COLA) for years. The waiver, however, was withdrawn when suit was commenced in 2008:

Waiver, which is the voluntary and intentional relinquishment of a contract right, ” should not be lightly presumed' and must be based on a clear manifestation of intent' to relinquish a contractual protection” … . It may be accomplished by affirmative conduct or failure to act so as to evince an intent not to claim the purported advantage … .

The mere existence of a nonwaiver clause does not preclude waiver of a contract clause … . However, a “waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence” … .

As the plaintiff correctly contends, the record demonstrates that the plaintiff voluntarily relinquished her right to receive maintenance COLA increases as provided in the parties' 1983 stipulation from 1984 through May 2008, when such waiver was withdrawn … . Although the defendant is correct that the plaintiff raises for the first time on appeal her contention that she withdrew her waiver upon commencing this action, this contention may be reached since it involves a question of law that is apparent on the face of the record and could not have been avoided by the Supreme Court if it had been brought to its attention … . Thus, we reach this issue.

“A waiver, to the extent that it has been executed, cannot be expunged or recalled, but, not being a binding agreement, can, to the extent that it is executory, be withdrawn, provided the party whose performance has been waived is given notice of withdrawal and a reasonable time after notice within which to perform” … . Since the stipulation was an executory contract between the parties pursuant to which the defendant remained under a continuing obligation to pay maintenance to the plaintiff, upon the plaintiff's filing of the summons and complaint in this action, such waiver was withdrawn … . Stassa v Stassa, 2014 NY Slip Op 08629, 2nd Dept 12-10-14

 

,

Motion to Set Aside a Verdict Properly Denied When Based Upon an Error Not Preserved by Objection

The Second Department noted that a motion to set aside a verdict (Criminal Procedure Law 330.30) is properly denied when it is based upon an error that was not preserved by objection.  (The issue could be addressed by the appellate court in the interest of justice, but the exercise of interest of justice jurisdiction was declined here.) People v Clayborne, 2014 NY Slip OP 08659, 2nd Dept 12-10-14

 

, ,

Court Should Not Have Denied Biological Mother’s Petition to Enforce the Visitation Provision in a Surrender Agreement Without Making a Finding Based Upon the Best Interests of the Child—Failure to Make Such a Finding Rendered the Record Insufficient for Review—Matter Sent Back for a Hearing

The Second Department, over a dissent, determined that Family Court should not have denied the biological mother's petition to enforce the provision of a surrender agreement which allowed her to visit the child without a finding that the requested visitation is not in the best interests of the child.  Finding the record inadequate for review, the Second Department sent the matter back for a hearing:

Social Services Law § 383-c(2)(b) permits the parties to a judicial surrender agreement to provide for a biological parent's continued communication or contact with the child. In determining whether to approve the agreement, the court must determine whether continued contact with the biological parent would be in the child's best interests (see Social Services Law § 383-c[2][b]). A provision providing for visitation with the biological parent is not legally enforceable unless the court that approved the surrender agreement states, in a written order, that the provision would be in the child's best interests (see Domestic Relations Law § 112-b[2]; cf. Social Services Law § 383-c[2][b]). Even then, in an enforcement proceeding pursuant to Domestic Relations Law § 112-b, a court “shall not enforce an order under this section unless it finds that the enforcement is in the child's best interests” (Domestic Relations Law § 112-b[4]). In other words, there must be a best interests judicial determination both at the time the surrender agreement is accepted and at the time that enforcement of a visitation provision is sought … . * * *

Here, the Family Court dismissed the petition without affording the biological mother an opportunity to establish that enforcement of the visitation provision of the surrender agreement would be in the child's best interests. Thus, there is no hearing record for us to review. Further, while it may be true that the Family Court was aware of facts and circumstances that may have supported a determination that enforcement of the visitation provision would not have been in the child's best interests, the record before us does not contain those facts. Accordingly, we are unable to conduct effective appellate review of the court's determination or to make required findings on our own  … . Matter of Jayden A, 2014 NY Slip Op 08637, 2nd Dept 12-10-14

 

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