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SECOND DEPARTMENT TO JUDGES: DON’T DISMISS A COMPLAINT SUA SPONTE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, made the following point explicit: a sua sponte dismissal of a complaint is almost never appropriate and almost always will be reversed:

Sua sponte dismissals are not appealable as of right (see CPLR 5701[a][2] …). The reason is that such dismissals are not, by definition, the product of motions made on notice for that particular relief as otherwise statutorily required. Nevertheless, the Second Department has consistently recognized the gravity of sua sponte dismissals and the lack of opportunity for aggrieved parties to have been heard on the dispositive issue at the trial level. Those circumstances have caused the Second Department to typically grant discretionary applications for leave to appeal (see CPLR 5701[c]), or relatedly, to deem notices of appeal to be applications for leave to appeal, which have been liberally granted … . * * *

The importance that courts not dismiss actions sua sponte absent extraordinary circumstances is grounded in a fundamental concept that lawyers and judges know well—that due process requires parties to be given notice and an opportunity to be heard about litigation issues … . Courts are to be bastions of due process. It is not the role of the court, within the moat of that bastion, to seize upon an issue not raised by any party in a motion and to unilaterally dismiss an action on the basis of that discrete issue, without providing the party whose claim is dismissed so much as notice of the issue and an opportunity for all parties to be heard on it. The Court of Appeals has cautioned the judiciary that “[w]e are not in the business of blindsiding litigants, who expect us to decide [matters] on rationales advanced by the parties, not arguments their adversaries never made” … . Wells Fargo Bank, N.A. v Louis, 2024 NY Slip Op 02948, Second Dept 5-29-24

Practice Point: Judges should not dismiss complaints sua sponte because the parties are not given proper notice of the relevant issue and the parties do not have the opportunity to be heard on it.

 

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THE PLEA ALLOCUTION NEGATED ELEMENTS OF THE CRIME; APPEAL HEARD DESPITE FAILURE TO PRESERVE THE ISSUE BY MOVING TO WITHDRAW THE PLEA; GUILTY PLEA VACATED (SECOND DEPT). ​

The Second Department, vacating defendant’s guilty plea, determined the defendant’s factual recitation preceding the plea negated elements of the offense. The court heard the appeal despite a failure to preserve the error by moving to withdraw the plea:

Although the defendant failed to preserve for appellate review his contention concerning the factual recitation with respect to the charge of attempted burglary in the second degree, where, as here, the defendant’s factual recitation clearly casts significant doubt upon his guilt or otherwise calls into question the voluntariness of the plea, the defendant may challenge the sufficiency of the plea allocution on direct appeal despite the failure to move to withdraw his plea of guilty on that ground … .

The crime of attempted burglary in the second degree provides, in relevant part, that a person is guilty of that offense when, inter alia, he or she knowingly enters a dwelling unlawfully with the intent to commit a crime therein (Penal Law §§ 110.00, 140.25[2]). During his plea allocution, the defendant stated that he did not enter the home knowingly. Upon further questioning by the County Court, the defendant stated that he had “no intent” to commit the crime. The defendant’s factual recitation therefore negated an essential element of attempted burglary in the second degree, which was not corrected by further inquiry by the court, thereby calling into question the voluntariness of the defendant’s plea … . People v Martinez, 2024 NY Slip Op 02938, Second Dept 5-29-24

Practice Point: When the plea allocution negates elements of the crime and the judge does not inquire further, the question whether the plea was voluntary is raised.

Practice Point: When it is clear from the record that the plea allocution negated elements of the crime, the issue will be heard on direct appeal even if not preserved by a motion to withdraw the plea.

 

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THE RECORD WAS NOT SUFFICIENT TO EVALUATE THE CLAIM DEFENSE COUNSEL’S FAILURE TO IMPEACH THE DETECTIVE’S TESTIMONY WITH AN INCONSISTENT STATEMENT CONCERNING THE IDENTIFICATION OF DEFENDANT AMOUNTED TO INEFFECTIVE ASSISTANCE; DEFENSE COUNSEL’S “PRE-PEOPLE V BOONE” FAILURE TO REQUEST A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE (CT APP).

he Court of Appeals, affirming defendant’s conviction, over a concurring opinion, determined the record was not sufficient to demonstrate defense counsel’s failure to impeach the defective’s testimony with inconsistencies concerning the identification of defendant amounted to ineffective assistance.  And the failure to request the cross-racial identification jury instruction, at a time when the instruction was discretionary (before People v Boone, 30 NY2d 521 (2017)), did not amount to ineffective assistance:

We cannot conclude that counsel’s failure to impeach Detective Morales with his suppression hearing testimony that the victim was unsure if defendant was the gunman establishes ineffective assistance of counsel. “The lack of an adequate record bars review on direct appeal wherever the record falls short of establishing conclusively the merit of the defendant’s claim” … .

… [T]or the reasons set forth in People v Watkins (decided today), the failure to request a cross-racial identification instruction prior to this Court’s decision in People v Boone (30 NY3d 521 [2017]), which made such an instruction mandatory upon request, does not alone amount to ineffective assistance of counsel. People v Lucas, 2024 NY Slip Op 02843, CtApp 5-23-24

Practice Point: The record was insufficient to evaluate the claim that defense counsel was ineffective for failure to impeach the detective’s testimony with an inconsistent statement concerning the identification of the defendant.

Practice Point: At the time of this pre People v Boone trial a cross-racial identification jury instruction was discretionary. Defense counsel’s failure to request the charge did not amount to ineffective assistance.

 

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THE CUSTODY-RELATED PRINCIPALS UNDERLYING MICHAEL B, 80 NY2D 299, APPLY TO THIS SURROGATE’S COURT GUARDIANSHIP PROCEEDING WHERE BOTH PARENTS SEEK TO BE APPOINTED GUARDIAN OF THEIR DEVELOPMENTALLY DISABLED SON AS HE TURNS 18; NEW EVIDENCE RENDERED THE RECORD INSUFFICIENT FOR A GUARDIANSHIP DETERMINATION; A NEW HEARING WAS ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, in this Surrogate’s Court guardianship proceeding, determined the principals underlying Matter of Michael B, 80 NY2d 299, a custody case, should apply to this action to determine which parent should be appointed guardian of their developmentally disabled son, Joseph J D II, as he turned 18. Because new evidence was brought to light after the hearing, the record is no longer sufficient and a new hearing was ordered:

These appeals present us with the narrow question of whether a rule set forth by the Court of Appeals in Matter of Michael B. (80 NY2d 299)—that an appellate court may remit a child custody matter for a new hearing if subsequent developments reflect that the record has become insufficient to determine the issues presented—may be extended to this appeal from a Surrogate’s Court decree determining a guardianship contest between the parents of an adult with a developmental disability within the meaning of article 17-A of the Surrogate’s Court Procedure Act. In light of certain commonalities between this dispute and a custody dispute, including a focus on the best interest of the individual who is the subject of the proceedings, we conclude that the rule and underlying rationale set forth in Matter of Michael B. is equally applicable here. Thus, in this proceeding pursuant to Surrogate’s Court Procedure Act article 17-A, we will consider new facts and allegations brought to our attention by the parties for the limited purpose of ascertaining whether the record before us is sufficient make a best interest determination, which is the same standard applied in appeals involving child custody. Upon doing so, we find that a new hearing is warranted because the record is no longer sufficient to determine what, at this juncture, is in the best interest of Joseph J. D. II. Matter of Joseph J.D. (Robert B.D.), 2024 NY Slip Op 02813, Second Det 5-22-24

Practice Point: The custody-related principals underlying Matter of Michael B, 80 NY2d 299, were applied to this Surrogate’s Court guardianship proceeding where both parents sought to be appointed guardian of their developmentally disabled son as he turned 18. Because new evidence came to light rendering the record inadequate, a new hearing was ordered.

 

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THE DA HANDLING THE APPEAL WAS A LAW CLERK TO THE JUDGE WHO PRESIDED OVER THE TRIAL; THE CONFLICT OF INTEREST REQUIRES THE APPOINTMENT OF A SPECIAL PROSECUTOR FOR THE APPEAL (THIRD DEPT).

The Third Department determined the District Attorney handling the appeal had a conflict of interest because she was a law clerk to the County Court judge who presided over the trial. A special prosecutor must be appointed to handle the appeal:

During oral argument on this appeal, the Chief Assistant District Attorney (hereinafter ADA) who appeared on behalf of the People confirmed that she served as the confidential law clerk to the County Court Judge who presided over this matter and did so at the time of the underlying trial. Oral argument was permitted to proceed on the merits, but the Court directed the parties to submit letter briefs addressing the impact, if any, of the ADA’s prior position on her ability to represent the People on appeal. Two days later, this Court handed down People v Pica Torres (___ AD3d ___, 2024 NY Slip Op 02345, *1-2 [3d Dept 2024]), which determined that a similar conflict situation required the appointment of a special prosecutor to handle the appeal. In her responding letter brief, the ADA acknowledges that she was personally and substantially involved in this matter as the trial judge’s law clerk, raising a conflict of interest under Rule 1.12 of the Rules of Professional Conduct (see Rules of Prof Conduct [22 NYCRR 1200.00] rule 1.12 [d] [1]). In her responding letter, counsel for defendant acknowledges that the appointment of a special prosecutor is required. Given the foregoing, we remit the matter for the expeditious appointment of a special prosecutor to handle this appeal. People v McNealy, 2024 NY Slip Op 02728, Third Dept 5-16-24

Practice Point: If the DA handling the appeal was a law clerk to the judge presiding over the trial there is a conflict of interest requiring the appointment of a special prosecutor for the appeal.

 

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THE SHOOTER, WHO WAS NEVER FOUND OR IDENTIFIED, WAS A PASSENGER IN A CAR DRIVEN BY DEFENDANT WHEN THE SHOOTER SHOT AT AND MISSED A PERSON SITTING IN A PARKED CAR; THE ATTEMPTED MURDER AND ASSAULT CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s attempted murder and assault convictions as against the weight of the evidence, over a two-justice dissent, determined there was no evidence defendant shared the shooter’s intent. It was alleged defendant was the driver when his passenger shot at and missed a person sitting in a parked car. The shooter was never identified. There was no evidence defendant knew the victim:

… [T]he question is whether defendant shared the shooter’s intent to kill or seriously injure the victim. Even assuming, arguendo, that the conviction is supported by legally sufficient evidence … , we conclude that the verdict is against the weight of the evidence … . Viewing the evidence in light of the elements of those crimes as charged to the jury … and considering that “a defendant’s presence at the scene of the crime, alone, is insufficient for a finding of criminal liability” … , here the People failed to prove beyond a reasonable doubt that defendant “shared the [shooter’s] intent to kill” or cause serious physical injury to the victim, or the intent to use the gun unlawfully against the victim … , particularly given the lack of evidence “that defendant knew that the [shooter] was armed at the time defendant transported him” … .

From the dissent:

Defendant drove the vehicle while the shooter fired several times at the parked vehicle in which the victim was sitting in the front passenger seat, and the victim heard someone say “yo” as soon as the gunshots started. The police found the parked vehicle’s driver’s side windows shattered and shell casings on the ground next to the vehicle. A permissible and eminently reasonable inference from the facts was that defendant stopped or slowed down the vehicle in order to allow the shooter to fire several shots at the parked vehicle … . In other words, defendant shared the shooter’s intent to use a gun to kill or cause serious physical injury to the victim and “intentionally aid[ed]” the shooter to engage in such conduct (Penal Law § 20.00). In addition, defendant fled from the scene after the gunshots were fired and collided with another vehicle. The driver of that vehicle testified that, when she asked defendant to exchange paperwork and information, he told her to “move the f*** out of the way,” before he pushed her vehicle with his vehicle and drove off again. People v Lathrop, 2024 NY Slip Op 02618, Fourth Dept 5-10-24

Practice Point: Here the appellate court found the evidence of attempted murder legally sufficient but the verdict against the weight of the evidence (a difficult concept).

 

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PROOF OF THE VALUE OF STOLEN PROPERTY WAS INSUFFICIENT; CONVICTION REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reducing defendant’s possession-of-stolen-property conviction, determined the value of the property was not established:

We agree with defendant that, with respect to his conviction of criminal possession of stolen property in the third degree under count 1 of the indictment, there is legally insufficient evidence establishing the value of the items seized from the storage unit. Although defendant did not preserve that issue for our review, we exercise our power to address it as a matter of discretion in the interest of justice … . “A person is guilty of criminal possession of stolen property in the third degree when [that person] knowingly possesses stolen property, with intent to benefit [that person] or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds three thousand dollars” … . It is well settled that “a victim must provide a basis of knowledge for [their] statement of value before it can be accepted as legally sufficient evidence of such value” … . “Conclusory statements and rough estimates of value are not sufficient” to establish the value of the property … . Although the People elicited some valuation testimony from the victims at trial, such testimony did not include the basis for the victims’ knowledge of the value of most of the items in the storage unit … . We conclude on this record that the evidence is legally insufficient to establish that the value of the property taken exceeded $3,000 … . The evidence is legally sufficient, however, to establish that defendant committed the lesser included offense of criminal possession of stolen property in the fifth degree (see § 165.40). People v Hensley, 2024 NY Slip Op 02650, Fourth Dept 5-10-24

Practice Point: The basis for the victim’s knowledge of the value of the stolen property was not demonstrated; possession-of-stolen-property conviction reduced.

 

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FAMILY COURT SHOULD NOT HAVE SUSPENDED FATHER’S VISITATION WITHOUT MAKING FINDINGS OF FACT, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court should not have suspended father’s visitation without making findings of fact:

The father … contends that the court failed to make any factual findings whatsoever to support the determination to suspend the father’s visitation with the child, and that the matter should be remitted to allow the court to make such findings. We agree. It is “well established that the court is obligated ‘to set forth those facts essential to its decision’ ” … . Here, the court completely failed to follow that well-established rule when it failed to issue any factual findings to support its determination … , either with respect to whether there had been a change in circumstances … or the relevant factors that it considered in making a best interests of the child determination … . “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . We therefore reverse the amended order and remit the matter to Family Court to make a determination on the petition including specific findings as to a change in circumstances and the best interests of the child, following an additional hearing if necessary … . Matter of Miller v Boyden, 2024 NY Slip Op 02648, Fourth Dept 5-10-24

Practice Point: Here Family Court should not have suspended father’s visitation without making findings of fact because appellate review is impossible; matter remitted.

 

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WHEN DEFENDANT MADE STATEMENTS AT THE TIME OF THE PLEA WHICH RAISED A POSSIBLE INTOXICATION DEFENSE THE JUDGE SHOULD HAVE INQUIRED FURTHER; THE ISSUE NEEDN’T BE PRESERVED FOR APPEAL (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the defendant’s statement at the time of the plea raised questions the judge should have explored. A narrow exception to the preservation requirement applies here:

The narrow exception to the preservation requirement applies in this “rare case” where defendant made statements that cast doubt upon his guilt and the court failed to satisfy its duty of inquiring further to ensure that defendant’s plea was knowing and voluntary … . Although defendant’s statements at sentencing raised a possible intoxication defense, the court did not make any inquiry regarding the statements or the applicability of the defense. The court’s failure to ensure that defendant understood the defense and was waiving his right to pursue it at trial requires vacatur of the plea … . People v Dozier, 2024 NY Slip Op 02602, First Dept 5-9-24

Practice Point: If a defendant makes statements at the time of a plea which indicates a possible defense, the judge must make inquiries sufficient to ensure the plea is voluntary and intelligent.

Practice Point: When a defendant makes statements at the time of the plea which indicate a possible defense and the judge fails to make sufficient inquiries, the issue is appealable in the absence of preservation.

 

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DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION, GUILTY PLEA VACATED; THE WAIVER OF APPEAL WAS NOT DISCUSSED UNTIL AFTER THE GUILTY PLEA, WAIVER INVALID (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea and finding the waiver of appeal invalid, held that the judge’s failure to inform defendant of the period of postrelease supervision rendered the guilty plea involuntary. In addition, the judge did not discuss the waiver of appeal until after the guilty plea:

… County Court did not specify the period of postrelease supervision to be imposed and did not explain that a term of postrelease supervision would be imposed even if the defendant successfully completed a substance abuse diversion program. … [T]he court’s failure to so advise the defendant prevented his plea from being knowing, voluntary, and intelligent … . …

… County Court did not discuss the appeal waiver until after the defendant had already admitted his guilt … , and the court failed to ascertain whether the defendant “understood the nature of the appellate rights being waived” and the consequences of waiving those rights … . People v Reyes, 2024 NY Slip Op 02547, Second Dept  5-8-24

Practice Point: Failure to inform defendant of the period of postrelease supervision renders the guilty plea involuntary.

Practice Point: Failure to discuss the waiver of appeal until after the defendant pleads guilty renders the waiver invalid.

 

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