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No Appeal Lies from an Order Entered Upon a Default

The Fourth Department noted that no appeal lies from an order entered upon a default. The only remedy is a motion to vacate the default order:

Plaintiff appeals from an order granting the respective motion and cross motions of defendants seeking summary judgment dismissing the second amended complaint against them.  It is undisputed that plaintiff failed to oppose the motion and cross motions or to appear on the return date thereof, and thus we deem the order to be entered upon plaintiff’s default… . We therefore dismiss the appeal from the order inasmuch as no appeal lies from an order entered on default … .  The fact that Supreme Court, upon plaintiff’s default, granted the motion and cross motions on the merits … is of no moment inasmuch as no appeal lies from an order entered on default.  “[I]t is not inconsistent to determine both that plaintiff[ is] in default and that defendants are entitled to summary judgment on the merits.  Plaintiff[’s] remedy is to move to vacate the default [order]”… .  Britt…v Buffalo Municipal Housing Authority…, 977, 4th Dept 9-27-13

 

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Jury Should Have Accepted Extreme Emotional Disturbance Affirmative Defense

In a full-fledged opinion by Justice Cohen, over a dissent, the Second Department determined the jury’s failure to reduce the defendant’s conviction to manslaughter because he was under the influence of extreme emotional disturbance when he killed his girlfriend was against the weight of the evidence.  The opinion describes the nature and causes of the defendant’s emotional state in great detail. The court explained the “extreme emotional disturbance” affirmative defense as follows:

We begin our analysis by examining the nature and scope of the affirmative defense of extreme emotional disturbance. Penal Law §§ 125.25(1)(a) and 125.20(2), “[r]ead in tandem,” together “provide that a defendant who proves by a preponderance of the evidence that he or she committed a homicide while under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse’ is guilty of manslaughter and not murder” … . The defense of extreme emotional disturbance does not negate intent (see Penal Law § 125.20[2]…). Instead, the “defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although [ ] not free from responsibility for [the] crime, [defendant] ought to be punished less severely” … . Although the defense of extreme emotional disturbance is “an outgrowth of the heat of passion’ doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder,” the defense is broader than the “heat of passion” doctrine, and was intended to apply to a “wider range of circumstances” … .

The defense of extreme emotional disturbance comprises two elements. The first element is “wholly subjective” and”involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham” … . The subjective element “focuses on the defendant’s state of mind at the time of the crime and requires sufficient evidence that the defendant’s conduct was actually influenced by an extreme emotional disturbance” … . The subjective element is generally associated with a loss of self-control … . The second element, which the Court of Appeals has acknowledged to be “more difficult to describe,” requires that an objective determination be made as to whether there was a reasonable explanation or excuse for the emotional disturbance … . “Whether such a reasonable explanation or excuse exists must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been'” … . People v Sepe, 2013 NY Slip Op 06030, 2nd Dept 9-25-13

 

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“Law of the Case” Doctrine at the Appellate Level Explained

The Second Department explained the “law of the case” doctrine at the appellate level in the context of a Family Court matter:

As a general rule, the law of the case doctrine precludes this Court from reexamining an issue which has been raised and decided against a party on a prior appeal where that party had a full and fair opportunity to address the issue … . Review of the mother’s contention regarding the prohibition against telling the child that any man other than the father is the child’s biological father is barred by the doctrine of law of the case, as this Court has already decided this exact issue on a prior appeal …, and there has been no showing of subsequent evidence or change of law … . Matter of Fulmer v Buxenbaum, 2013 NY Slip Op 05819, 2nd Dept 9-11-13

 

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Waiver of Appeal Invalid; Counsel Did Not Take Position Adverse to Client Re: Pro Se Motion

In affirming the conviction, the Third Department determined the waiver of appeal (re; the harshness of the sentence) was not valid and defendant’s counsel had not take a position adverse to the defendant with respect to defendant’s pro se motion to withdraw his guilty plea. Although defense counsel responded negatively when the court asked if counsel knew of any legal basis for defendant’s motion, the Third Department explained that counsel was unaware of the contents of the motion at the time the court asked about it:

County Court failed to adequately distinguish the right to appeal from  those rights that are automatically forfeited upon  a guilty plea, thus rendering defendant’s appeal waiver invalid…. Moreover, no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was  also waiving his right to appeal the harshness of his sentence …. Nor do we  find that the deficiencies in the allocution are cured by defendant’s written appeal waiver…  * * *

…[D]efense counsel’s negative  response  to County  Court’s inquiry  at the outset of the hearing as to whether  “there [was] any  legal basis in [counsel’s] knowledge to allow [defendant] to withdraw his plea of guilty” was clearly not an opinion on the merits of defendant’s pro se motion – which counsel had not yet reviewed – and, thus, counsel did not thereby take a position adverse to that of his client or affirmatively undermine  the arguments  that defendant sought to present to the court… .  People v Pimentel, 104070, 3rd Dept 7-11-13

 

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Valid Waiver of Appeal Did Not Encompass Challenge to Severity of Sentence in this Case

The Fourth Department noted that a valid waiver of the right to appeal does not encompass a challenge to the severity of the sentence when the defendant was not advised of the potential periods of incarceration or the potential maximum term of incarceration.  The court, however, concluded the sentence was not unduly harsh or severe. People v Virgil, 783, 4th Dept 7-5-13

 

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Writ of Coram Nobis Granted—Ineffective Assistance of Appellate Counsel

The Second Department granted defendant’s writ of coram nobis to vacate (dismissing the indictment), on the ground of ineffective assistance of appellate counsel.  Among the grounds for appeal not raised were: repugnant verdicts, erroneous and missing jury charges (including the statutory elements), failure to give a limiting charge with respect to evidence of defendant’s prior criminal record, and prosecutorial misconduct.  People v Morales, 2013 NY Slip Op 05094, 2nd Dept 7-3-13

 

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Consent Order Not Appealable; Open Court Stipulation Valid

The Second Department noted that an order made on consent is not appealable and affirmed Family Court’s determination that a stipulation entered into in open court was valid:

Stipulations of settlement are favored by the courts and a stipulation made on the record in open court will not be set aside absent a showing that it was the result of fraud, overreaching, mistake, or duress”…. Here, the Family Court conducted a proper allocution of the mother, determining that she understood the terms of the stipulation, that she had sufficient time to consult with her attorney, and that she consented to the terms of the stipulation, and thus properly determined that she voluntarily and knowingly accepted the terms of the stipulation…. The mother’s contentions in support of her motion that she felt “forced into settling” and “misle[]d” by her attorney, and that she “did not fully understand what [she] was agreeing to” are insufficient to establish a claim of mistake or duress so as to warrant setting aside the stipulation of settlement… . Matter of Strang v Rathbone, 2013 NY Slip Op 05088, 2nd Dept 7-3-18

 

 

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Defendant Should Have Been Adjudicated a Youthful Offender; Waiver of Appeal Not Valid

The Fourth Department determined the defendant’s waiver of appeal was invalid and County Court should have adjudicated the defendant a youthful offender (re: criminal possession of a weapon):

…[T]he waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice”… .

A defendant between the ages of 16 and 19 who, like defendant herein, “has been convicted of an armed felony offense . . . is an eligible youth if the court determines that . . . [there are] mitigating circumstances that bear directly upon the manner in which the crime was committed” (CPL 720.10 [3] [i]), and we conclude that such is the case here. The record reflects that defendant was the victim of a brutal attack by multiple perpetrators the day prior to the armed felony offense at issue herein. … Defendant told the police that he had fired a single shot into the porch of his attackers’ house “to send a message to them to stop messing with him as he was a serious threat if need be.” According to defendant, he knew that his attackers would not be home and, indeed, the record reflects that the residence was unoccupied at the time of the shooting.  People v Amir W, 759, 4th Dept 6-28-13

 

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Failure to Fully Inform About Postrelease Supervision Required Reversal

After noting that a waiver of appeal does not preclude a challenge to the voluntariness of a guilty plea, the Third Department reversed because the defendant was not fully informed about the promised duration or potential range of postrelease supervision:

Here, the record reflects, as the People concede, that while the plea agreement included a specific negotiated sentence and a mention of postrelease supervision, defendant was never advised by the court of either a promised specific duration or the potential range of the mandatory postrelease supervision component prior to sentencing. Accordingly, his decision to plead guilty was not a knowing, voluntary and intelligent one and, therefore, the judgment of conviction must be reversed… . People v Brown, 105107, 3rd Dept 6-27-13

 

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Defendant May Not Be Cross-Examined About Criminal Conviction on Direct Appeal

In reversing defendant’s assault conviction, the Court of Appeals, in a full-fledged opinion by Judge Lippman, determined a defendant with a conviction pending appeal may not be cross-examined about the underlying facts of that conviction until direct appeal has been exhausted.  Judge Lippman wrote:

At trial, the defense was justification and defendant planned to testify, but the People received permission, after a Sandoval hearing, to cross-examine him about his recent rape conviction, still pending on direct appeal, as well as the underlying facts, and the sentence he received. After the People rested, defense counsel asked the court to reconsider the Sandoval ruling, objecting that an appeal of the rape conviction was pending and, therefore, cross-examination about the conviction and its underlying facts would violate defendant’s constitutional privilege against self-incrimination, but the court adhered to its ruling. Defendant did not testify and was convicted of third-degree assault. Subsequently, his conviction for rape was reversed for ineffective assistance of counsel, his prior attorney having failed to impeach the complainant with exculpatory hospital records…. Defendant was retried and acquitted.  * * *

…[I]n ruling that the prosecution could cross-examine defendant about the underlying facts of his rape conviction, presumably the court was not implying that defendant could not assert his Fifth Amendment privilege in response to those questions. However, “taking the Fifth,” is highly prejudicial as to both the instant case and the conviction pending appeal. To a jury, it appears as though defendant is admitting the truth of the leading questions posed by the prosecutor; “[i]t exerts an undeniable chilling effect upon a real ‘choice’ whether to testify in one’s own behalf” …. More problematic, defendant must invoke the Fifth Amendment as to both exculpatory and inculpatory questions to protect himself; otherwise he might waive the privilege… .  People v Cantave, No 129, CtApp 6-25-13

 

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