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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

 

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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

 

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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

 

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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

 

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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

 

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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

 

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No Appeal Lies from an Ex Parte, Sua Sponte, Judgment/Order

In affirming the dismissal of an inmate's action seeking to challenge the computation of his sentence (dismissal was based upon the inmate's failure to comply with the service requirements in an order to show cause), the Third Department noted that no appeal lies from an ex parte order, including an order entered sua sponte.  Apparently the remedy is a motion to vacate pursuant to CPLR 5015:

…[T]here is “no right of appeal from an ex parte [judgment/order], including [one] entered sua sponte,” such as Supreme Court's dismissal of the petition here … . Under the circumstances presented here, we decline to treat the notice of appeal from that judgment as an application for leave to appeal (see CPLR 5701 [c]…). Petitioner sought renewal pursuant to CPLR 2221 and, while perhaps more properly viewed as one to vacate pursuant to CPLR 5015, the judgment denying that motion presents the salient issues for review. Matter of Martin v Annucci, 2014 NY Slip Op 08539, 3rd Dept 12-4-14

 

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Court’s Limited Arbitration-Review Powers Described—Collateral Estoppel Precluded the District from Raising the “Faithless Servant Doctrine” in a Related Lawsuit Because the Arbitrator Concluded the Doctrine Did Not Apply

The Third Department affirmed the arbitrator's decision that the school district employee, who had attempted to retire after allegations that she stole school district property surfaced, was entitled to health benefits.  The court determined, given that the faithless servant doctrine was litigated fully during the arbitration and deemed inapplicable, and given the arbitrator's conclusion the employee was entitled to her contractual health benefits, the school district was collaterally estopped from amending its complaint in the related court proceedings to include the faithless servant doctrine:

…Vacatur of the arbitration award is not warranted. “It is well established that an arbitrator's award is largely unreviewable” … . Vacatur of an arbitration award is only appropriate where “it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power” … . “Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where 'an arbitrator has made an error of law or fact'” … . Union-Endicott Cent Sch Dist v Peters, 2014 NY Slip Op 08533, 3rd Dept 12-4-14

 

When a Party Does Not Object to Errors in a Verdict Sheet, the Jury Charge Becomes the Law Applicable to the Case—Only “Fundamental” Errors Will Be Reviewed on Appeal (No Fundamental Error Here)—“Fundamental Error” In this Context Briefly Defined

The First Department explained its review powers with respect to errors in a verdict sheet that were not preserved by objection:

The record reflects that the jury charge correctly advised that loss of enjoyment of life was a component of pain and suffering … . Defendant argues that the verdict sheet was inconsistent with this instruction. However, defendant concedes that it failed to object to the verdict sheet. Thus, defendant failed to preserve the issue of the error in the verdict sheet for review by this Court … .

Where a party fails to object to errors in a verdict sheet, the charge becomes the law applicable to the determination of the case, and on appeal, this Court will review only if the error was “fundamental” … . We find that the alleged conflict between the jury charge and the verdict sheet was not fundamental since it did not confuse or create doubt as to the principle of law to be applied, or improperly shift fault, such that the “jury was prevented from fairly considering the issues at trial” … . Grace v NYC Tr Auth, 2014 NY Slip Op 08362, 1st Dept 12-2-14

 

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Verdict May Not Be Set Aside Pursuant to Criminal Procedure Law 330.30 On a (Waivable) Ground Not Preserved by Objection at Trial

The Second Department determined Supreme Court should not have set aside the verdict pursuant to a CPL 330.30 motion on a ground which was not preserved by an objection.  Supreme Court set aside the assault second conviction on the ground that the indictment, which charged assault first, was improperly amended during trial to assault second.  Because the defendant did not object to the amendment, the issue could not be the basis for setting aside the verdict pursuant to CPL 330.30:

In considering a motion to set aside or modify a verdict pursuant to CPL 330.30(1), a trial court may only consider questions of law, not fact … . Moreover, a trial court may only consider claims of legal error under CPL 330.30(1) where those claims are properly preserved for appellate review … .

Contrary to the Supreme Court’s determination, the alleged amendment of the indictment was not a nonwaivable defect, and the defendant was required to make a timely objection at trial to preserve, for the Supreme Court’s consideration, a claim pursuant to CPL 330.30(1) that the indictment was impermissibly amended … . As the defendant failed to object at trial, he “waived” any challenge to the reduction of the count alleging assault in the first degree …, and the Supreme Court was without authority to set aside the verdict on that ground … . People v Davidson, 2014 NY Slip Op 08346, 2nd Dept 11-26-14

 

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