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Assignment of Counsel Required Before Determining Whether Appeal Should Be Dismissed as Untimely

The Court of Appeals determined the appellate division was required to assign counsel upon a showing of indigency before ruling on whether defendant’s first-tier appeal as of right should be dismissed for failure to meet the timeliness requirement in the 2nd Department’s rules:

In this case, the Appellate Division erroneously failed to assign counsel to represent defendant before dismissing his first-tier appeal as of right based on his failure to timely perfect it.  Notwithstanding the Appellate Division’s rule mandating automatic dismissal of an untimely perfected appeal (see 22 NYCRR 670.8 [f]), its decision to dismiss the appeal here remained a discretionary determination on the merits of a threshold issue on defendant’s first-tier And an appellate court had not yet passed on, nor had counsel presented, defendant’s appellate claims with respect to dismissal or any other matter, thus leaving defendant ill equipped to represent himself. Because the factors cited in Douglas [372 US 387], Halbert [545 US 605] and Taveras [463 F3d 141], are present in the instant case, the Appellate Division was required to assign defendant an attorney upon a showing of indigence in order to enable him to oppose the court’s motion to dismiss his first-tier appeal as of right, and the court’s failure to appoint counsel to represent defendant without considering his indigency or the merits of dismissal warrants reversal and reinstatement of defendant’s appeal.  Upon remittal to the Appellate Division, that court should decide whether defendant is indigent pursuant to CPLR 1101.  If defendant establishes his indigence, the court must assign counsel to litigate the dismissal motion, and the court should determine, in its discretion, whether dismissal is appropriate. appeal, rather than an automatic bar to appeal … . People v Kordish, 252, CtApp 10-17-2013

 

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Waiver of Appeal Not Effective

In finding the defendant did not effectively waive his right to appeal, the Second Department explained:

…[T]he record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The defendant’s purported waiver of the right to appeal is unenforceable, as the record does not indicate that he had ” a full appreciation of the consequences'” of such waiver … . While the defendant signed a written waiver, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … . Accordingly, in the absence of a knowing, voluntary, and intelligent waiver of the right to appeal, the defendant retained his right to challenge the denial of that branch of his omnibus motion which was to suppress identification testimony… . People v Crawford, 2013 NY Slip Op 06705, 2nd Dept 10-16-13

 

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Sexual Offense Convictions Reversed as Against the Weight of the Evidence—Too Many Inconsistencies and Contradictions in Proof

The Second Department reversed defendant’s convictions on sexual offenses as against the weight of the evidence:

The testimony of the prosecution’s witnesses failed to provide a credible foundation for the defendant’s convictions due to numerous inconsistencies and contradictions. * * *

…[T]the prosecution’s witnesses testified that the defendant and the mother separated in 2002, and, at the time, the defendant had already moved out of the home where the abuse allegedly took place. Thus, many of the alleged incidents of abuse took place after the defendant had moved out of the home and no longer had a key to it. From 2003 to 2005, a restraining order that the mother obtained against the defendant was in effect, and the mother confirmed that, during one period of time in 2004, the defendant conducted all of his visits with the children outside of the home. The testimony of the prosecution’s witnesses was generally inconsistent as to whether, during the other visits, the defendant stayed alone with the children in the mother’s home, or whether the grandmother or the mother was always present. In any event, although the younger stepdaughter alleged that the defendant molested her twice per week between 2000 and 2004, the trial testimony clearly established that the defendant’s access to the children was often limited after he moved out of the mother’s home in 2002.  People v McMitchell, 2013 NY Slip Op 06713, 2nd Dept 10-16-13

 

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Robbery Conviction Against Weight of Evidence—Hand In Pocket Not Evidence of Threat to Use Force

In reversing the defendant’s robbery conviction as against the weight of the evidence, the Second Department determined the fact that defendant’s hand was in his pocket did not support the “threat to use immediate physical force” element of the offense:

This Court has held that where an unarmed person “positions his hand in his pocket in a manner that is intended to convey to his victim the impression that he is holding a firearm,” that qualifies as displaying what appears to be a gun … . Since the defendant here admitted to knowingly entering the warehouse with the intent to commit a crime therein, the acquittal of burglary in the second degree could only be based upon the People’s failure to prove that the defendant displayed what appeared to be a firearm, or, in other words, upon the People’s failure to prove that the defendant positioned his hand in his pocket in a manner intended to convey to the complainants the impression that he was holding a gun.

The trial court’s factual finding that the defendant did not display what appeared to be a firearm is supported by the record. The trial court, however, failed to give that finding the proper weight with respect to the crime of robbery in the third degree … . If the People failed to prove that the defendant displayed what appeared to be a firearm by holding his hand in his pocket, then there was no basis on which the trial court could conclude that the defendant’s conduct of holding his hand in his pocket constituted a threat to use immediate physical force upon the complainants in order to overcome their resistance. Accordingly, the verdict of guilt with respect to robbery in the third degree was against the weight of the evidence, and we vacate that conviction and the sentence imposed thereon… .  People v Johnson, 2013 NY Slip Op 06709, 2nd Dept 10-16-13

 

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Evidentiary Issues Not Preserved for Review

In a full-fledged opinion by Judge Rivera, the Court of Appeals affirmed the conviction of a psychiatric patient based on his assault of another patient.  The court determined the doctor, who was cross-examined about defendant’s capacity by defense counsel, could have been questioned by defense counsel about the hearsay basis for her opinion. The failure to do so could not be complained about on appeal. The court also determined an objection to a line of questioning did not preserve the issue of witness-bias for review because defense counsel’s proffer did not specifically mention the exploration of witness-bias as the purpose of the questioning.  People v Daryl H, 154, CtApp 10-10-13

 

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Appellate Division, Acting as Second Appellate Court, Used Wrong Standard of Review

The Court of Appeals reversed the appellate division in a holdover tenant proceeding because the appellate division, acting as the second appellate court, use the wrong standard of review:

We agree with the dissenting opinion that the Appellate Division applied the incorrect standard of review to the Appellate Term order.  In primary residence cases, where the Appellate Division acts as the second appellate court, “the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses” … .The Appellate Division did not apply this standard of review to this case, instead substituting its own view of the trial evidence.  Accordingly, the case needs to be remitted to that court to apply the appropriate standard of review… . 409-411 Sixth Street, LLC v Mogi, 250, CtApp 10-10-13

 

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“Anders” Brief Rejected

In rejecting an “Anders” brief, the Second Department noted:

The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738) was deficient. The body of the brief—which was only 1½ pages in length—did not contain a statement of facts, and did not contain any case citations. The brief failed to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal … . Since the brief does not demonstrate that assigned counsel acted “as an active advocate on behalf of his . . . client” … or that he diligently examined the record, we must assign new counsel to represent the appellant… .  People v McNair, 2013 NY Slip Op 06389, 2nd Dept 10-2-13

 

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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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