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In Order for Family Court to Review a Support Magistrate’s Order, Specific Objections Must Have Been Made to Preserve the Issues Raised in Family Court

The Third Department determined that Family Court’s order must be vacated because it was based upon issues not raised in objections to the Support Magistrate’s order.  Because Family Court acts as an appellate court with respect to orders by the Support Magistrate, any errors must be preserved by objections:

…”[A]n order from a Support Magistrate is final and Family Court’s review under Family Ct Act § 439 (e) is tantamount to appellate review and requires specific objections for issues to be preserved” … .  The issues noted by the court were not included in the father’s objections …. Matter of Porter v D’Amano. 516522, 3rd Dept 1-9-14

 

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Family Court Has No Power to Add to Terms of Remittitur

The Second Department determined Family Court had failed to comply with the terms of its remittitur.  On appeal, the Second Department previously determined that the mother’s commitment to jail for failure to comply with a court order should be reduced from six months to 30 days.  Family Court then committed the mother to 30 days but added she was not to receive allowances for good behavior.  Because the “no allowances for good behavior” was not part of the appellate remittitur, that portion of Family Court’s order was invalid:

Upon a remittitur, a court is ” without power to do anything except to obey the … mandate of the higher court'” … . Here, the Family Court erred in failing to adhere to the terms of this Court’s remittitur by including in the amended order of commitment a provision directing that the mother would not receive time allowances for good behavior. We note that, although the mother is eligible for such time allowances (see Correction Law § 804-a[1]… ), the determination as to whether they should be granted is to be made by the person in charge of the institution where she is committed (see Correction Law § 804-a[3]… . Accordingly, we remit the matter to the Family Court, Nassau County, for the issuance of a second amended order providing that the mother is to be committed to the Nassau County Correctional Facility for a term of 30 days “unless sooner discharged according to law.”  Matter of Cunha v Urias, 2013 NY Slip Op 08624, 2nd Dept 12-26-13

 

 

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Conviction Under Accomplice Liability Theory Reversed After a Weight of the Evidence Analysis

The Second Department reversed defendant’s conviction for criminal sale of a controlled substance under an accomplice liability theory, finding the conviction against the weight of the evidence. The officer who purchased the drugs assumed, based on circumstantial evidence, the drugs were supplied to the seller by the defendant (who was in a vehicle with the seller and a woman) but did not actually see any transaction between the defendant and the seller:

Although the officer testified that, based upon his training and experience as an undercover officer who had made over 500 buys, he believed that the codefendant received drugs from the defendant inside the vehicle, he admitted that he did not observe an exchange of money or drugs between the codefendant and the defendant. People v Curry, 2013 NY Slip Op 08455, 2nd Dept 12-18-13

 

 

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No Preservation Required to Review Validity of Guilty Plea and Immediate Sentencing In Absence of the Waiver of the Rights to a Jury Trial, to Confront Witnesses and to Avoid Self-Incrimination

In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed two convictions because the defendant entered a guilty plea and was immediately sentenced without any discussion of the “Boykin” rights waived by the plea (trial by jury, confront accusers, avoid self-incrimination). The court determined that, under the facts, it was not possible or practical to preserve the error by motion:

…[I]n Lopez we carved out a narrow exception to the preservation requirement for the “rare case” in which “the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” (Lopez, 71 NY2d at 666).  We also recognized a limited exception in Louree, concluding that a defendant can raise a …claim on direct appeal because of “the actual or practical unavailability of either a motion to withdraw the plea” or a “motion to vacate the judgment of conviction” (Louree, 8 NY3d at 546; …).

Here, whether we characterize these cases as falling within the Lopez/Louree exception or treat defendant’s claims as implicating rights of a constitutional dimension directed to the heart of the proceedings — i.e., a mode of proceedings error for which preservation is not required — defendant’s Boykin claims are reviewable on direct appeal. People v Tyrell, 230, 231, CtApp 12-12-13

 

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Service Upon Opposing Party of Objections to Support Magistrate’s Order Is a Condition Precedent to Consideration of the Objections and Appellate Review

Failure to properly serve opposing party with objections to Support Magistrate’s order precludes a consideration of the merits of the objections and appellate review:

Family Court Act § 439 provides, in pertinent part, that “[a] party filing objections shall serve a copy of such objections upon the opposing party,” and that “[p]roof of service upon the opposing party shall be filed with the court at the time of filing of objections and any rebuttal.” Here, given the mother’s evidence that she did not live at the address to which the father had mailed the objections, coupled with the father’s conceded failure to mail the objections to the correct address, and where “no rebuttal to the objections had been filed by the mother” … ,”the father failed to fulfill a condition precedent to filing timely written objections to the Support Magistrate’s order and, thus, failed to exhaust the Family Court procedure for review of [his] objections” … . Consequently, “the Family Court lacked jurisdiction to consider the merits of the objections, and the father waived his right to appellate review” … . Matter of Hamilton v Hamilton, 2013 NY Slip Op 08246, 2nd Dept 12-11-13

 

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Defendant Understood the Reference to the “Appellate Division” Was a Reference to a Higher Court—Waiver of Appeal Was Therefore Valid

The Second Department, over a dissent, determined that the defendant’s waiver of appeal was knowingly, voluntarily and intelligently made.  The defendant was asked by the prosecutor if he understood he was waiving the right to appeal his conviction and sentence to “the Appellate Division, Second Department.”  Because the defendant was 27 years old, had prior contact with the criminal justice system, had filed a notice of appeal pro se, and had requested appellate counsel, the court concluded the defendant understood the reference to the “appellate division” was a reference to a higher court. People v Sanders, 2013 NY Slip Op 08276, 2nd Dept 12-11-13

 

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Parent Ordered to Pay Attorney’s Fees for Attorney Appointed to Represent the Children Has Standing to Raise Legal Malpractice Defense

In a full-fledged opinion by Justice Saxe, the First Department determined that father, who had been ordered to pay the attorney’s fees for the attorney appointed to represented the children, had standing to raise the defense of legal malpractice:

…[A] parent may assert legal malpractice as an affirmative defense to the fee claim of an attorney for a child. The attorney for the child, no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards. That the children cannot hire and pay for their own attorneys, leaving it to the court to make the necessary appointment, does not alter the applicable standards, or the means by which they may be raised.  Venecia V v August V, 2013 NY Slip Op 08140, 1st Dept 12-5-13

 

Trial Court Can Not Deviate from Terms of Remittitur Imposed by Appellate Court

The Second Department determined Supreme Court did have the power to deviate from the terms of the remittitur issue pursuant to an earlier appeal.  The matter had been sent back for a determination of attorney’s fees:

” A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court'” … . Accordingly, an order or judgment entered on remittitur ” must conform strictly to the remittitur'” … . Thus, although an award of an attorney’s fee normally lies within the sound discretion of the Supreme Court …, in this case, the Supreme Court’s award must also be judged by its conformity to this Court’s decision and order deciding the prior appeal … .

In this Court’s prior decision and order, the Supreme Court was instructed to “calculat[e] . . . the award of an attorney’s fee and costs associated with litigating the cause of action alleging a violation of Labor Law § 741” … . However, a review of the record makes clear that the Supreme Court’s award encompassed work performed after the … dismissal of the cause of action alleging a violation of Labor Law § 741. Because all litigation after that date must perforce have related either to the cause of action alleging a violation of Labor Law § 740 or the defendants’ own motion for an award of an attorney’s fee and costs, the Supreme Court’s award exceeded the mandate of this Court’s remittitur … .  Tomo v Episcopal Health Servs Inc, 2013 NY Slip Op 08070, 2nd Dept 12-4-13

 

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Count (on which Jury Could Not Reach a Verdict) Dismissed Before “Entry of Sentence” on the Remaining Count Can Be Reprosecuted after Appeal

The First Department determined the defendant could be retried on an attempted rape charge which was dismissed upon a motion by the prosecution after the jury was unable to reach a verdict on that count.  The defendant was convicted of the assault count.  The assault conviction was reversed on appeal and a new trial was ordered. The question before the court was whether, upon re-trial, the dismissed attempted rape count could be re-tried as well:

Upon remand, Supreme Court properly determined that the People were permitted to reprosecute the attempted rape charge, because that count of the indictment was deemed reinstated pursuant to CPL 470.55(1). Although the statute provides that a count is not deemed reinstated if it was dismissed on a “post-judgment order” (CPL 470.55[1][b]), the dismissal of the attempted rape charge occurred between the oral imposition of sentence and the entry of judgment … . There is nothing in the record to indicate that, before dismissing the count at issue, the court had done anything that could be construed as entry of a judgment. Since a judgment “is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence” (CPL 1.20 [15][emphasis added]), “post-judgment” can only mean after entry.

Double jeopardy concerns did not bar retrying defendant on the attempted rape count. The first jury never returned any verdict on that count. Furthermore, defendant had no legitimate expectation that the dismissal of that count was final and irrevocable As noted, the statute provides that a reversal granting a new trial would automatically reinstate any counts dismissed under the circumstances presented here. Moreover, the record establishes that when the People moved to dismiss, they were engaging in the common practice of dismissing a charge as sufficiently covered by a conviction on another charge, an exercise of prosecutorial discretion that was frustrated by the reversal of the conviction. Defendant had no legitimate expectation that in the event of a reversal he would receive the windfall of having the dismissed charge stay dismissed.  People v Thomas, 2013 NY Slip Op 07833, 1st Dept 11-26-13

 

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“Something” Stuck in Victim’s Back Is Legally Sufficient Evidence of Displayed Firearm

In a full-fledged opinion by Judge Read (over a dissent), the Court of Appeals affirmed the first-degree robbery convictions of two co-defendants.  The Court determined evidence of “something” stuck into the victim’s back was legally sufficient evidence of a displayed firearm, and a show-up identification procedure (two hours after and five miles away from the robbery) was correctly found to be reasonable by the lower courts (generally an unreviewable mixed question of law and fact for the Court of Appeals).  People v Howard…, 189, 190, CtApp 11-26-13

 

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