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ACQUITTAL ON THE RAPE AND FORCIBLE TOUCHING CHARGES RENDERED THE “ENDANGERING THE WELFARE OF A CHILD” CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s “endangering the welfare of a child” conviction, determined defendant’s acquittal on the rape and forcible touching charges rendered the conviction “against the weight of the evidence:”

In conducting our weight of the evidence review, we consider the jury’s acquittal on other counts, and, under the circumstances of this case, find the jury’s acquittal on the other counts supportive of a reversal of the conviction on the count of endangering the welfare of a child … . Here, the defendant was charged with, but acquitted of, rape in the second degree, rape in the third degree, and forcible touching, and the alleged conduct that formed the basis of those charges was essentially the same alleged conduct that formed the basis of the charge of endangering the welfare of a child. Once the jury discredited the complainant’s testimony with respect to the charges of rape and forcible touching, the record was devoid of any evidence that the defendant “knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old” … , as charged on the count of endangering the welfare of a child. People v Liston, 2024 NY Slip Op 02066, Second Dept 4-17-24

Practice Point; Defendant was acquitted of the rape and forcible touching charges which were based on the same allegations as was the conviction on the “endangering the welfare of a child” charge. The conviction, therefore, was “against the weight of the evidence.”

 

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THE THIRD DEPARTMENT JOINS THE OTHER DEPARTMENTS IN HOLDING THAT A PLAINTIFF NEED NOT MAKE A MOTION TO SET ASIDE THE VERDICT TO PRESERVE AN “AGAINST THE WEIGHT OF THE EVIDENCE” ARGUMENT ON APPEAL (THIRD DEPT). ​

The Third Department, affirming the defense verdict in this medical malpractice case, joined the other appellate division departments in finding that a plaintiff may make a “verdict is against the weight of the evidence” argument on appeal without moving to set aside the verdict on that ground:

… [We now join our colleagues in our sister Departments in concluding that plaintiffs were not required to preserve their weight of the evidence contention by moving to set aside the verdict upon that basis … . A trial court has the authority to order a new trial “on its own initiative” when the verdict is contrary to the weight of the evidence (CPLR 4404 [a]), and this Court’s power “is as broad as that of the trial court” … . Although we believe it remains best practice for a party to challenge a verdict upon this basis before the trial court, in light of its superior opportunity to evaluate the proof and credibility of witnesses … , we nonetheless agree that this Court is fully empowered to “order a new trial where the appellant made no motion for that relief in the trial court” … . To the extent that our prior decisions have suggested otherwise, they should no longer be followed … . Fitzpatrick v Tvetenstrand, 2024 NY Slip Op 01956, Third Dept 4-10-24

Practice Point: In this decision, the Third Department joined the other departments in holding that a plaintiff need not make a motion to set aside the verdict to preserve an “against the weight of the evidence” argument on appeal.

 

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DEFENDANT, WHO WAS SUFFERING FROM MENTAL ILLNESS, WAS CONVICTED OF MURDER; THE JURY’S REJECTION OF DEFENDANT’S “EXTREME EMOTIONAL DISTURBANCE” DEFENSE WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REDUCED; THE STRONG DISSENT ARGUED DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO SUBMIT EVIDENCE OF DEFENDANT’S MENTAL ILLNESS AT THE SUPPRESSION HEARING (SECOND DEPT).

The Second Department, reducing defendant’s murder conviction to manslaughter first degree, over an extensive dissent, determined the jury’s determination that defendant failed to prove he was acting “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” (Penal Law § 125.25[1][a]), was against the weight of the evidence. Defendant, who suffered from mental illness, had been involuntarily committed to to a medical facility. The victim, who was beaten and strangled, allegedly sexually assaulted defendant in the shower. The dissent argued defense counsel was ineffective in failing to introduce evidence of defendant’s mental illness in support of the motion to suppress statements defendant made to a detective:

… [W]e find that the jury’s determination that the defendant failed to prove by a preponderance of the evidence that he was acting “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” (Penal Law § 125.25[1][a]) when he killed the victim was against the weight of the evidence. The defendant’s state of mind is a subjective question, and the existence of a reasonable excuse is an objective question … . The first element, 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 second element requires an objective determination as to whether there was a reasonable explanation or excuse for the emotional disturbance, and “[w]hether 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'” … .

From the dissent:

At the suppression hearing, the People presented the testimony of the detective who had interviewed the defendant. The defense did not present any evidence. Defense counsel was well aware of the … voluminous psychiatric documentation concerning the defendant’s mental illness. However, defense counsel failed to move to admit into evidence any of these records. Rather, in support of the motion to suppress, defense counsel merely presented arguments that the defendant’s mental state at the time that the Miranda warnings were administered precluded the admissibility of his statements to the detective. People v Andrews, 2024 NY Slip Op 01935, Second Dept 4-10-24

Practice Point: Here, the appellate court determined the jury’s rejection of defendant’s “extreme emotional disturbance” affirmative defense was against the weight of the evidence. The murder conviction was reduced to manslaughter first degree.

 

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SERVICE OF THE ORDER APPEALED FROM BY EMAIL DOES NOT START THE TIME TO TAKE AN APPEAL; FATHER’S REQUEST FOR TELEPHONIC AND WRITTEN CONTACT WITH HIS DAUGHTER PROPERLY DENIED; FATHER WAS INCARCERATED FOR PREDATORY SEXUAL BEHAVIOR INVOLVING A CHILD ABOUT THE SAME AGE AS HIS DAUGHTER (THIRD DEPT). ​

The Third Department, affirming Family Court’s denial of father’s request for telephonic and written contact with his daughter, in a full-fledged opinion by Justice Egan, determined Family Court did not abuse its discretion. Father is incarcerated after pleading guilty to predatory sexual assault against a child, possessing a sexual performance by a child, promoting a sexual performance by a child and use of a child in a sexual performance. The victim of father’s crimes was about the same age as father’s daughter and was acquainted with father’s daughter. The Third Department noted that the time for perfecting father’s appeal never started to run because the notice of the entry of the order appealed from was sent to father by email, which is not an accepted method of service:

… “[A]s the father was served the order by the court via email, which is not a method provided for in Family Court Act § 1113, and there is no indication that he was served by any of the methods authorized by the statute, we conclude that the time to take an appeal did not begin to run and that it cannot be said that the father’s appeal is untimely” … . * * *

Family Court observed that the father pleaded guilty to sex offenses relating to a victim who was about the same age as the child at the time of the hearing — and who was, we note, acquainted with the child — and the father’s testimony gave no reason to believe that he appreciated how his actions might have impacted the child. Family Court further credited the mother’s testimony that she had given the child all of the father’s letters after screening them for inappropriate content, and that the child had simply decided, without any interference from the mother, not to respond to them. The child was almost 13 years old at the time of the hearing and, as such, her apparent desire not to communicate with the father was entitled to some weight in assessing her best interests … . We are satisfied that, according deference to Family Court’s assessment of witness credibility, the foregoing constitutes a sound and substantial basis in the record for the determination that the presumption favoring visitation with a noncustodial parent had been rebutted and that the best interests of the child would be served by limiting contact with the father to written correspondence to which the child was not required to respond … . Matter of Robert M. v Barbara L., 2024 NY Slip Op 01847, Third Dept 4-4-24

Practice Point: Service of an order by email does not start the 30-day period for taking an appeal of the order.

Practice Point: Family Court did not abuse its discretion by denying the incarcerated father’s request for telephonic and written contact with his daughter. Father had pled guilty to predatory sexual behavior involving a victim about the same age as his daughter and with whom his daughter was acquainted.

 

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A PRETRIAL RULING ON THE ADMISSIBILITY OF EVIDENCE IS AN UNAPPEALABLE ADVISORY RULING; THE MOTION IN LIMINE SEEKING TO SET A LIMIT ON THE VALUE OF AN LLC WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION WHICH SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce action, determined: (1) an advisory pretrial ruling on the admissibility of evidence is not appealable, and (2) the motion to limit the evidence of the valuation of the LLC to $2,450,000, although couched as a motion in limine, was actually an untimely summary judgment motion:

“[A]n order, made in advance of trial, which merely determines the admissibility of [*2]evidence is an unappealable advisory ruling” … . * * *

… [P]laintiff’s motion which sought, in effect, to set the minimum value of the LLC at $2,450,000 and preclude any evidence of a lower value, while styled as a motion in limine, was the functional equivalent of an untimely motion for partial summary judgment determining that the value of the LLC was at least $2,450,000 … . “[A] motion in limine is an inappropriate substitute for a motion for summary judgment” … , and “in the absence of any showing of good cause for the late filing of such a motion,” should not have been considered … . Desantis v Desantis, 2024 NY Slip Op 01699, Second Dept 3-27-24

Practice Point: A pretrial ruling on the admissibility of evidence is an unappealable advisory ruling.

Practice Point: The motion in limine seeking to set a limit on the value of an LLC in this divorce proceeding was actually an untimely motion for summary judgment which should not have been considered.

 

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IT WAS NOT CLEAR FROM THE RECORD WHETHER THE JUDGE IMPROPERLY DEEMED YOUTHFUL OFFENDER STATUS TO HAVE BEEN WAIVED BY THE PLEA, OR WHETHER THE JUDGE REJECTED YOUTHFUL OFFENDER STATUS AFTER CONSIDERING IT AS REQUIRED; MATTER REMITTED (FIRST DEPT).

The First Department, remanding the matter for consideration of youthful offender status, determined it was not clear from the record whether the judge improperly denied youthful offender status because it has been waived by the plea or whether youthful offender status had been considered and rejected:

Although the court stated at sentencing that it would not grant defendant youthful offender status with regard to Indictment Nos. 3801/16 and 583/17, “there is nothing in the record to indicate that it actually independently considered youthful offender treatment,” as required by CPL 720.20(1) and People v Rudolph (21 NY3d 497 [2013]), “instead of denying such treatment because it was not part of the plea agreement” … . While a court need not set forth its reasons for denying youthful offender treatment … , it is still required to “clarify expressly whether it had ‘actually consider[ed] youthful offender treatment’ or whether it had improperly ‘ruled it out on the ground that it had been waived as part of defendant’s negotiated plea'” … . Because the court did not satisfy this obligation, we remand the matter for a determination of whether defendant should be afforded youthful offender treatment as to the promoting prison contraband and attempted criminal sale of a controlled substance convictions. People v J.G., 2024 NY Slip Op 01520, First Dept 3-19-24

Practice Point: In rejecting youthful offender status, the judge need not give the reasons but the record must reflect the judge considered the issue and did not improperly consider it waived by the plea.

 

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THE MAJORITY HELD SUPREME COURT PROPERLY ALLOWED PLAINTIFFS TO FILE AN AMENDED COMPLAINT AFTER THE COMPLAINT HAD BEEN DISMISSED WITHOUT PREJUDICE BY THE APPELLATE DIVISION BECAUSE COUNTERCLAIMS WERE STILL BEFORE THE COURT (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over a three-judge dissenting opinion, determined that plaintiffs were properly allowed to amend their complaint, which had been dismissed without prejudice, because counterclaims were still before the court:

… [T]he Appellate Division dismissal of the second amended complaint due to lack of standing or capacity was without prejudice …. . The order contemplated that the company could “in theory, be revived,” but simply stated that [plaintiff] had done so improperly. Therefore, there is nothing in the Appellate Division’s order or opinion that would prevent plaintiffs from pursuing their claims after curing the standing or capacity issue. …

The question on appeal, then, is whether the Appellate Division’s decision required the plaintiffs to commence a separate action instead of seeking leave to file an amended complaint. Whatever the answer to that question might be in a case in which no action remained between the parties in Supreme Court, … here the action remained pending in Supreme Court because of the [defendants’] counterclaims. Therefore, Supreme Court retained control over the parties and continued to adjudicate claims related to the same transactions that formed the subject-matter of the complaint. For that reason, the Appellate Division order also did not render the case final for purposes of appealability, as no appeal to the Court of Appeals may be taken from an order which leaves claims pending in the action between the same parties … .

Because the original action remained pending in Supreme Court even after the complaint was dismissed, Supreme Court retained the power to grant leave to plaintiffs to file another amended complaint. Favourite Ltd. v Cico, 2024 NY Slip Op 01496, CtApp 3-19-24

Practice Point: Here the appellate court had dismissed the complaint without prejudice and the issue was whether plaintiffs could file an amended complaint, or whether plaintiffs had to start a new lawsuit. The Court of Appeals held Supreme Court retained the power to allow an amended complaint because counterclaims were still before the court.

 

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THE NYPD’S FAILURE TO TIMELY COMPLY WITH A COURT ORDER REQUIRING THE RELEASE OF DOCUMENTS PURSUANT TO A FOIL REQUEST WARRANTED THE AWARD OF ATTORNEY’S FEES TO PETITIONER; RESPONDENT NYPD’S ABANDONING AN ISSUE IN A PRIOR APPEAL PRECLUDED APPELLATE REVIEW OF THAT ISSUE IN A SUBSEQUENT APPEAL (FIRST DEPT).

The First Department determined the NYPD’s failure to timely comply with a court order mandating a response to petitioner’s FOIL request warranted the award of attorney’s fees to petitioner:

… [T]he court properly granted attorney’s fees and costs arising from NYPD’s noncompliance with this Court’s prior order. NYPD’s argument, that this noncompliance was justified because some of the records were sealed after NYPD’s final administrative determination, was abandoned in the prior appeal … , and this Court has “no discretionary authority” to reach this unpreserved issue in the interest of justice in this article 78 proceeding challenging an administrative determination … . The court providently exercised its discretion in holding NYPD in civil contempt, given that NYPD waited several months before disclosing a video and 407 heavily redacted pages of responsive records, after which petitioner was forced to continue litigating its entitlement to complete disclosure of unredacted copies of the records. After this Court’s January 2021 order, NYPD should have disclosed all records responsive to petitioner’s FOIL request, without the need for any further proceedings. “Once the court has issued a valid order, it is not for the recipient of that order to fashion its own remedy” … . The “lengthy delay” caused by NYPD “was unreasonable under the particular circumstances of this case,” warranting an award of attorney’s fees and costs pursuant to FOIL … . Matter of Jewish Press, Inc. v New York City Police Dept., 2024 NY Slip Op 01511, First Dept 3-19-24

Practice Point: Failure to timely respond to a court order requiring the release of documents pursuant to a FOIL request, necessitating further litigation by the petitioner, warrants the award of attorney’s fees to petitioner.

 

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NEW FACTS RENDERED THE RECORD INSUFFICIENT FOR APPELLATE REVIEW IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING; MATTER REMITTED FOR A “BEST INTERESTS OF THE CHILDREN” HEARING (FOURTH DEPT).

The Fourth Department, sending the matter back for a “best interests of the children” hearing in this termination-of-parental rights proceeding, determined new facts prohibited an adequate review:

… [T]he three oldest children, along with the father, assert that new facts and allegations warrant remittal for a new dispositional hearing to determine the best interests of those children. We may “consider . . . new facts and allegations ‘to the extent [that] they indicate that the record before us is no longer sufficient’ to determine whether termination of . . . parental rights is in [a child’s] best interests” … . * * * … [W]e conclude that the record before us is no longer sufficient to determine whether termination of respondents’ parental rights is in the best interests of those children … . Matter of Noah C. (Greg C.), 2024 NY Slip Op 01430, Fourth Dept 3-15-24

Practice Point: In a Family Court case, new facts which render the record inadequate for appellate review require remittal for a hearing.

 

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THE SUPPRESSION COURT APPLIED THE WRONG “DEBOUR” LEVEL TO THE INITIAL INQUIRY BY THE OFFICER WHO APPROACHED DEFENDANT AND REQUESTED THAT HE STEP OUT OF THE CAR; BECAUSE THE SUPPRESSION ISSUE HAD NOT BEEN RULED UPON UNDER THE CORRECT “DEBOUR” STANDARD, THE APPELLATE COURT COULD NOT CONSIDER THE ISSUE AND THE MATTER WAS REMITTED FOR A RULING UNDER THE CORRECT “DEBOUR” STANDARD (FOURTH DEPT).

The Fourth Department, reserving decision, remitted the matter for another ruling on defendant’s suppression motion. The trial judge determined that the police officer conducted a level one (DeBour) inquiry when he ordered the defendant out of the car. In fact, the officer conducted a level three inquiry which required reasonable suspicion of criminal activity. Because the ruling on defendant’s suppression motion was based upon the wrong standard, the matter was remitted for a ruling under the correct standard:

… [T]he patrol lieutenant engaged in a level three intrusion under De Bour when he ordered the occupants out of the vehicle … . Although an “officer’s initial approach of [a person] and request for identification [may constitute] a permissible level one encounter” under De Bour, it is well established that an “officer’s request that [a person] exit [a] parked vehicle elevate[s] the situation to a level three encounter under De Bour” and requires reasonable suspicion that criminal activity is afoot … .

Because the court erroneously concluded that the patrol lieutenant engaged in only a level one intrusion when he directed defendant to step out of the vehicle, the court had no occasion to consider whether the patrol lieutenant had reasonable suspicion justifying that directive … . Although the People concede that the patrol lieutenant lacked reasonable suspicion, we are precluded “from reviewing an issue that . . . was not decided by the trial court” … . People v Taylor, 2024 NY Slip Op 01449, Fourth Dept 3-15-24

Practice Point: When the police officer approached defendant and asked defendant to get out of the car, the officer was conducting a level three DeBour inquiry which required reasonable suspicion of criminal activity. The suppression judge erroneously applied the criteria for a level one inquiry and denied suppression. Because the correct suppression issue was never ruled upon, the appellate court was forced to remit the matter for a ruling under the correct DeBour standard.

 

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