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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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Appellate Court Recognized Prior Decision Was “Clearly Erroneous” and Did Not Hold Trial Court to It

The Fourth Department noted that a trial court is bound by an appellate decision, even if the decision is wrong.  However, in this case, the Fourth Department upheld the trial court’s modification, acknowledging that its prior decision should not be followed:

It is well settled that, until a decision of this Court is “ ‘modified or reversed by a higher court, . . . the trial court is bound by our decision’ ”…, regardless of whether our decision was correctly decided….  We thus conclude that the Surrogate erred in failing to comply with our prior decision. Nevertheless, this Court is not likewise required to follow our prior decision under the doctrine of law of the case.    Indeed, for the reasons that follow, we conclude that we should not apply the doctrine of law of the case herein, and we therefore affirm the modified decree … .“As the doctrine of . . . law of the case is not one of inflexible law, but permits a reasoned exercise of a certain degree of discretion in its application, the better rule is that the doctrine should not be utilized to accomplish an obvious injustice, or applied where the former appellate decision was clearly, palpably, or manifestly erroneous or unjust . . . [T]he effect of a prior ruling by an appellate court in a later appeal before that court, or in a subsequent stage of the same appeal before that court, presents the problem of balancing the interest in foreclosing reconsideration of the prior decision with the desire for a just result . . .  We recognize that our earlier decision was “clearly erroneous”…, as “shown by contrary authority emanating from [the Court of Appeals,] whose rulings . . . are controlling”…. We also conclude that “correction of the error made on the former appeal [will] create no injustice or hardship, [inasmuch as] no change has been made in the status of the parties in reliance upon the ruling in the former appeal” ….  Matter of Ladelfa, 580, 4th Dept, 6-14-13

 

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Objection to Molineux Evidence Not Preserved for Appeal

The Fourth Department noted that failure to request a limiting instruction with respect to Molineux evidence and the failure to object to the court’s failure to provide a limiting instruction rendered the issue unpreserved for appeal.  The Molineux evidence in this sexual abuse case was evidence of the physical (not sexual) abuse of the victim’s brother:

On appeal from a judgment convicting him following a jury trial of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) and endangering the welfare of a child (§ 260.10 [1]), defendant contends that he is entitled to a new trial because Supreme Court neglected to give limiting instructions with respect to Molineux evidence establishing that he had subjected the victim’s brother to physical abuse (see People v Molineux, 168 NY 264). As defendant correctly concedes, that contention is unpreserved for our review because his attorney did not request a limiting instruction and failed to object to the court’s failure to provide one (see CPL 470.05 [2]…).    Because the Molineux evidence in question did not relate to prior sexual abuse, and because it appears from the record that defense counsel knew of the court’s failure to give limiting instructions and yet remained silent when the error could have been corrected, we decline to exercise our power to review that contention as a matter of discretion in the interest of justice … . People v Willians, 392, 4th Dept, 6-14-13

 

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Defendant Who Pled to All Charges Without a Plea Bargain Could Not Be Required to Waive Appeal

The Third Department noted that the defendant should not have been required to waive his right to appeal where he pled to all the charges and there was no plea bargain:

Having exercised his statutory  right to  plead  guilty to  all of  the charges levied against him in the indictment and inasmuch as “no promise, plea agreement, reduced charge, or any other bargain or consideration” was given in exchange for that plea, defendant was improperly required to waive his right to appeal … .  People v Crump, 104433, 3rd Dept, 6-6-13

 

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Waiver of Appeal Not Sufficient

The Third Department determined defendant’s waiver of his right to appeal, which included a written waiver, was not sufficient because it was not clear he understood the waiver was separate and distinct from the rights given up by the guilty plea.  The defendant was 21 years old, had no prior criminal history and had some mental health problems.  The Third Department wrote:

…[T]he court did not ensure that “defendant ha[d] ‘a full appreciation of the consequences’ of such waiver”…, which requires record proof that the defendant “comprehend[s] that an  appeal waiver ‘is separate and  distinct from  those rights automatically forfeited upon  a plea of guilty'”….  This was  especially important considering defendant’s age, mental health history and lack of prior criminal history; defendant was 19 years old at the time of the crime and 21 at the time of sentencing, had  been diagnosed and  had  ongoing problems with attention deficit hyperactivity disorder, past history of suicidal ideation, bipolar disorder, a possible learning disorder and  a significant history of acting out on  impulse.  The written waiver also failed to explain the separate and distinct nature of the right being waived.  As it is not evident on the face of the record that defendant was  aware  of this separate and  distinct nature, we cannot be sure that his waiver of the right to appeal was knowingly and intelligently made… .  People v Bouton, 103593B, 3rd Dept, 6-6-13

 

Review and Evidence Standards in Small Claims Actions Explained

The Third Department explained the appellate review and damages-evidence standards for small claims actions as follows:

Appellate review of small claims is limited to determining whether “substantial justice has not been done between the parties according to the rules and principles of substantive law” (UCCA 1807; …); only a clearly erroneous determination will be overturned ….  Here, a credibility determination was required, and City Court chose to credit plaintiff’s testimony regarding the events at defendant’s premises over the testimony of two employees of defendant. We agree with County Court that the determination that plaintiff’s ring was converted was not clearly erroneous, and that substantial justice was  done.

Further, as to the issue of damages, we note that although small claims matters are not bound by the rules of evidence, a determination may not be based solely on hearsay (see UCCA 1804…).  Here,   plaintiff described the size and condition of the ring in her testimony, and also submitted a “lost ring appraisal” performed by a jeweler, stating a value of $8,600.  Although this appraisal, based solely upon plaintiff’s description of the ring, was hearsay …, plaintiff’s trial testimony presented some measure of competent evidence of the amount of damages, as she described the quality and condition of the ring… .  Rowe v Silver & Gold Expressions, 515526, 3rd Dept, 6-6-13

 

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Appellate Court Can Grant Summary Judgment to Nonappealing Party

In the course of a decision awarding partial summary judgment to the defendant, the Third Department noted that “this Court has the authority to grant summary judgment to a nonappealing party” and did so with regard to a nonappealing defendant as well.  Shree Shiv Shakti Corp… v Khalid Properties, LLC, 515810, 3rd Dept 5-30-13

 

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