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ALTHOUGH FATHER FILED A PETITION FOR CUSTODY AFTER GRANDMOTHER WAS AWARDED CUSTODY, FATHER’S APPEAL WAS NOT MOOT; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY TO ENSURE FATHER’S WAIVER OF COUNSEL WAS KNOWING, VOLUNTARY AND INTELLIGENT (SECOND DEPT). ​

The Second Department, reversing Family Court, determined: (1) the fact that father filed a petition for custody after custody had been awarded to grandmother did not render father’s appeal of the custody-award to grandmother moot; (2) because the judge failed to make a searching inquiry, father did not effectively waive his right to counsel:

“Once a court makes a finding that extraordinary circumstances exist” to conclude that a parent relinquished his or her otherwise superior right to custody as compared to a nonparent, “that issue cannot be revisited in a subsequent proceeding seeking to modify custody and, thus, such a finding may have enduring consequences for the parties” … . In the order appealed from, the Family Court determined that the requisite extraordinary circumstances existed. This appeal is therefore not academic, among other reasons, because the court’s determination in the order appealed from imposes enduring consequences upon the father that will “impact the scope of the pending proceedings” … . …

Family Court failed to conduct a searching inquiry to ensure that the father’s waiver of his right to counsel was made knowingly, voluntarily, and intelligently … . The hearing record demonstrates that the father did not wish to proceed pro se, but felt that he had no other option but to do so … . To the extent the attorney for the child contends that the court was not required to conduct a searching inquiry because the father did not demonstrate that he was entitled to assigned counsel, this contention is without merit. A court’s obligation to ensure the validity of a party’s waiver of his or her right to counsel extends beyond indigent parties … . In any event, the father indicated that he lacked the funds necessary to afford an attorney, and the court failed to inquire into the father’s financial capability to retain counsel … . The court had an independent obligation to conduct such an inquiry and could not rely solely upon information received from the Legal Aid Society of Orange County regarding whether the father qualified for its services … . Matter of Turner v Estate of Laura Katherine Jane Turner, 2024 NY Slip Op 00193, Second Dept 1-17-24

Practice Point: Here father’s appeal of the award of custody to grandmother was not moot, even though father first filed for custody after the award of custody to grandmother.

Practice Point: A sufficient inquiry into whether a party’s waiver of the right to counsel is knowing, voluntary and intelligent must go beyond whether the party is financially entitled to assigned counsel.

 

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IF A PATIENT DOES NOT REQUEST A COMBINED HEARING UNDER THE MENTAL HYGIENE LAW ON AN “EMERGENCY” HOSPITAL ADMISSION AND AN “INVOLUNTARY” HOSPITAL ADMISSION, IT IS ERROR TO COMBINE THEM; HOWEVER A PATIENT COULD REQUEST A COMBINED HEARING AND RESPONDENT WAS NOT PREJUDICED BY THE COMBINED HEARING IN THIS CASE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined that the combined hearing pursuant to Mental Hygiene Law sections 9.31 and 9.39 was improper but the patient was not prejudiced by the procedure. The respondent had been released from the hospital, so the appeal was moot. But the Third Department heard the case because the issue was likely to otherwise evade review:

As we understand respondent’s position, she maintains that in the context presented — where a patient is admitted on an emergency basis under Mental Hygiene Law § 9.39 and has demanded a hearing, but whose status is converted to an involuntary admission on medical certification under Mental Hygiene Law § 9.27 prior to the hearing — the ensuing hearing must be limited to a section 9.39 format. Respondent emphasizes that she never requested a hearing under section 9.31 to challenge her involuntary admission. By holding a combined hearing, respondent contends that County Court deprived her of her statutory right to demand a later hearing under section 9.31. * * *

The … question is whether County Court improperly combined the hearings … to conclusively resolve whether respondent was entitled to release that day, assuming the proof fell short under either standard. That question is resolved by the procedures outlined in Mental Hygiene Law §§ 9.31 (a) and 9.39 (a) (2), which vest in the patient — not the court or hospital — the right to request a hearing under each section. In that regard, we agree with respondent that, because she never requested a hearing under section 9.31, the court erred in holding a combined hearing and she retained the right to later request a hearing under section 9.31. On the other hand, had respondent also requested a section 9.31 hearing, we see no reason why a combined hearing could not be held by the court, provided it did so within the applicable statutory deadlines and considered both statutory standards in rendering its decision. Matter of Julie O., 2024 NY Slip Op 00015, Third Dept 1-4-24

Practice Point: Here an “emergency” hospital admission under the Mental Hygiene Law and an “involuntary” admission were pending at the same the time. The admissions have different standards. Therefore, if the patient does not request a combined hearing the court should not hold one. However a patient could request a combined hearing.

Practice Point: Here the patient had been released from the hospital and the appeal of the patient’s admission was moot. However the Third Department considered the case because the issue was likely to evade review.

 

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THE MOTION FOR SUMMARY JUDGMENT WAS PREMATURE (MADE BEFORE ISSUE WAS JOINED) AND SHOULD NOT HAVE BEEN GRANTED; ALTHOUGH NOT PRESERVED THE ISSUE COULD BE HEARD ON APPEAL BECAUSE IT PRESENTED A QUESTION OF LAW THAT COULD NOT HAVE BEEN AVOIDED IF RAISED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for summary judgment which was brought before issue was joined should not have been granted. Although the issue was not preserved for appeal, the Second Department heard the appeal because it presented a pure question of law that could not have been avoided if it was brought up below:

“A motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to” … . Since H Mart’s motion was made prior to joinder of issue, the Supreme Court should not have granted that branch of the motion which was for summary judgment on the cause of action to recover damages for breach of contract alleging failure to procure insurance … . “Although this argument is raised for the first time on appeal, we reach the argument because it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture” … . Maurizaca v CW Highridge Plaza, LLC, 2023 NY Slip Op 06734, Second Dept 12-27-23

Practice Point: A motion for summary judgment will be denied if made before issue is joined.

Practice Point: An issue that is not preserved for appeal may be decided on appeal if it presents a pure question of law which could not have been avoided if it had been raised below.

 

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IN THIS TRAFFIC ACCIDENT CASE, EVIDENCE DEFENDANT FAILED TO SEE THE CAR HE COLLIDED WITH AND FAILED TO TIMELY BRAKE IS NOT LEGALLY SUFFICIENT FOR A CRIMINALLLY NEGLIGENT HOMICIDE CONVICTION; THE LEGAL INSUFFICIENCY ARGUMENT WAS PRESERVED BY A MOTION TO DISMISS BROUGHT AT THE CLOSE OF THE PEOPLE’S CASE AND RULED ON AFTER THE DEFENDANT’S CASE; THE “LEGALLY INSUFFICIENT” VERSUS “AGAINST THE WEIGHT OF THE EVIDENCE” STANDARDS EXPLAINED (THIRD DEPT).

The Third Department, reversing defendant’s criminally negligent homicide conviction in this traffic accident case, determined the evidence was legally insufficient. The Third Department noted the issue was preserved by a written motion to dismiss submitted at the close of the People’s case and ruled upon after the close of defendant’s case. The Third Department also compared the criteria for a motion to dismiss for legal insufficiency and a determination a conviction is against the weight of the evidence. The trial evidence demonstrated only that defendant was inattentive when he rounded a turn and struck the back of the victim’s car as it was waiting to make a turn while travelling about 45 mph. That was not enough to demonstrate criminal negligence:

Defendant preserved the claim of legal insufficiency when County Court reserved upon a written motion to dismiss presented at the close of the People’s case and ultimately denied the motion at the close of defendant’s case … .

A review of legal sufficiency requires this Court to “view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” … . Whereas, a review of whether a verdict is against the weight of the evidence requires the court to “view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence” … . * * *

“The unexplained failure of a driver to see the vehicle with which he subsequently collided does not, without more, support a conviction for the felony of criminally negligent homicide” … . Here, the People argue that a failure to brake — for what is alleged to be a period of 10 to 18 seconds — constitutes criminal negligence. But even taking the facts in the light most favorable to the People, a failure to brake, without more, does not constitute criminal negligence … . People v Munise, 2023 NY Slip Op 06562, Third Dept 12-21-23

Practice Point: Here the victim died after a rear-end collision. Proof that defendant failed to see the victim’s car and failed to timely brake does not support a criminally negligence homicide conviction.

Practice Point: Making a motion to dismiss at the close of the People’s case which is ruled on after the defendant’s case preserves the legal insufficiency argument for appeal.

Practice Point: The decision includes a comparison of the “legal insufficiency” and “against the weight of the evidence” analytical criteria.

 

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A CANINE SNIFF FOR DRUGS IS A SEARCH; ALTHOUGH THE APPELLATE DIVISION HAD ALSO RULED THE CANINE SNIFF WAS A SEARCH, THE APPELLATE DIVISION WENT ON TO APPLY THE “REASONABLE SUSPICION” STANDARD AND FOUND THAT STANDARD HAD BEEN MET BY THE FACTS; THE COURT OF APPEALS DETERMINED THE APPELLATE DIVISION DID NOT HAVE THE AUTHORITY TO RULE ADVERSELY TO THE DEFENDANT ON THE STANDARD BECAUSE COUNTY COURT HAD NOT RULED ON THAT ISSUE (COUNTY COURT HELD THE SNIFF WAS NOT A SEARCH); THE MATTER WAS SENT BACK TO COUNTY COURT FOR RULINGS ON THE STANDARD FOR A SNIFF SEARCH (CT APP). ​

The Court of Appeals, in a comprehensive opinion by Judge Cannataro, determined that a canine sniff of a person to detect drugs is a search. The Fourth Department had reversed County Court and held that the canine sniff constituted a search. But the Fourth Department went on to apply the “reasonable suspicion” standard to whether the search was justified and found that standard had been met by the facts. Because County Count had not ruled on the correct standard for a sniff-search (County Court held the sniff was not a search), the Fourth Department did not have the authority rule against the defendant on that issue. The matter was sent back to County Court for rulings on what the correct standard is and whether that standard was met by the events preceding the sniff-search in this case:

… [W]e conclude that the canine sniff of defendant’s person qualified as a search under the Fourth Amendment. * * *

The second question presented by this appeal is whether the Appellate Division could decide that a canine sniff search of a person requires reasonable suspicion and was justified in this case. We conclude that the Appellate Division lacked jurisdiction to resolve those issues because County Court did not decide them adversely to defendant (see LaFontaine, 92 NY2d at 473-474). * * *

County Court held that the canine sniff of defendant’s person did not qualify as a search. The court did not decide the standard that would govern if the canine sniff did so qualify, much less whether that standard was met. Those questions present “separate” and “analytically distinct” issues from the threshold question of whether the sniff implicated constitutional protections or prohibitions … . The Appellate Division therefore erred in deciding those questions adversely to defendant…. . People v Butler, 2023 NY Slip Op 06468, CtApp 12-19-23

Practice Point: A canine sniff for drugs on a person is a search. The correct standard justifying such a search has not been determined.

Practice Point: If an issue has not been addressed by the lower court, the appellate court is powerless to rule adversely to the defendant on that issue. Here County Court had held that a canine sniff is not a search and therefore never ruled on the correct standard for such a search. The Appellate Division (which reversed County Court on whether the sniff is a search) could not decide what the correct standard for the search was and then rule that the standard had been met, because that ruling was adverse to the defendant. The matter was sent back to the County Court for a ruling.

 

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NONE OF THE ESPINAL EXCEPTIONS APPLIED TO THE DEFENDANT FIRE SAFETY AND SECURITY CONTRACTOR IN THIS SLIP AND FALL CASE; THEREFORE THE CONTRACTOR’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED; THE ISSUE WAS PROPERLY CONSIDERED ON APPEAL, DESPITE THE FAILURE TO RAISE IT BELOW, BECAUSE IT CONCERNED A QUESTION OF LAW (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the defendant fire safety and security contractor’s motion for summary judgment in this slip and fall case should have been granted. It was alleged the steps where plaintiff fell were in disrepair and were not sufficiently illuminated, which had nothing to do with defendant-contractor’s duties. Therefore the contractor did not “launch and instrument of harm,” plaintiff could not have relied upon the contractor to make the area safe, and the contractor’s contract with the owner did not displace the owner’s safety-related responsibilities:

Unity, the building’s fire safety and security contractor, should have been granted summary judgment. Even assuming that Unity’s contractual fire safety inspection duties extended to the identification of premises defects such as the broken step involved in plaintiff’s mishap, any failure by Unity to identify that defect would not have constituted the affirmative launching of a force or instrument of harm within the meaning of Espinal … . The same is true of any failure by Unity to call attention to insufficient lighting of the stairway. Further, Unity’s contract did not completely displace the duty of the owner or managing agent to maintain the safety of the premises … . Nor is there any evidence that plaintiff detrimentally relied on Unity to perform its contractual duties. Accordingly, on this record, none of the Espinal conditions for holding a premises contractor liable for an injury to a third party are satisfied with respect to Unity. Diamond v TF Cornerstone Inc., 2023 NY Slip Op 06473, First Dept 12-19-23

Practice Point: Here none of the Espinal exceptions applied such that the contractor could be held liable for the slip and fall.

Practice Point: Although the “Espinal” issue was not raised below, it could be raised on appeal because it presented a question of law.

 

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THE DRIVER’S LICENSE SUSPENSION REFORM ACT (DLSRA), WHICH ELIMINATED LICENSE SUSPENSIONS FOR FAILURE TO PAY A FINE, DOES NOT VACATE UNLICENSED-OPERATION CONVICTIONS BASED UPON THE FAILURE TO PAY A FINE AND DOES NOT APPLY RETROACTIVELY; THE APPEAL WAIVER HERE WAS INVALID BECAUSE IT SUGGESTED DEFENDANT COULD NOT FILE A NOTICE OF APPEAL (FIRST DEPT).

The First Department, affirming defendant’s unlicensed operation of a vehicle conviction, in a full-fledged opinion by Justice Webber, determined the Driver’s License Suspension Reform Act (DLSRA) did not vacate defendant’s conviction. The DLSRA eliminated the failure to pay a fine as a basis for suspension of a driver’s license and does not apply retroactively. Defendants’ waiver of appeal was deemed invalid because the written waiver indicated a notice of appeal could not be filed:

… [T]he written waiver of appeal contained language … suggesting that the defendant was barred from even filing a notice of appeal … . The People contend that because they did not enforce the language stating that defendant’s appeal would be deemed a motion to vacate, the oral colloquy at the sentencing hearing cures the defect in the written waiver or otherwise renders defendant’s waiver valid. This contention is without merit … . …

The DLSRA amended Vehicle and Traffic Law § 510(4-a) to remove the failure to pay a fine as a basis for the suspension of a driver’s license … . The Legislative intent was to lift suspensions of licenses and lessen the financial burdens on the defendants by structuring an affordable installment payment plan … .

Nothing in the statutory language, which is the “clearest indicator of legislative intent” suggests that there was any intent to authorize the vacatur of convictions under Vehicle and Traffic Law § 511 that arose from license suspensions predicated on failures to pay a fine … . People v Castro, 2023 NY Slip Op 06452, First Dept 12-14-23

Practice Point: The Driver’s License Suspension Reform Act (DLSRA) does not vacate unlicensed-operation convictions stemming from a failure to pay a fine and does not apply retroactively.

Practice Point: A written waiver of appeal which indicates a notice of appeal cannot be filed is invalid.

 

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THE EVIDENCE OF “SERIOUS DISFIGUREMENT” WAS LEGALLY INSUFFICIENT; ASSAULT FIRST REDUCED TO ASSAULT SECOND; THE ISSUE WAS NOT PRESERVED (NO TRIAL ORDER OF DISMISSAL MOTION?) BUT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reducing defendant’s assault first conviction to assault second, determined the evidence of serious disfigurement was legally insufficient. The issue was not preserved (no motion for a trial order of dismissal on the issue?) but was considered on appeal in the interest of justice:

The People failed to demonstrate that the victim, who sustained a two-to-three-centimeter laceration on her forehead, which required three stitches and resulted in a small scar, suffered a serious disfigurement … . Accordingly, the convictions on those counts must be vacated. However, because the evidence sufficed to prove that the victim suffered a physical injury (Penal Law § 10.00[9]), we reduce the second-degree assault conviction to third-degree assault (Penal Law § 120.00[1]). People v Murray, 2023 NY Slip Op 06454, First Dept 12-14-23

Practice Point: If there is a “legally insufficient evidence” issue, raise it on appeal even if the issue was not preserved by a motion for a trial order of dismissal. The issue may be addressed in the interest of justice.

 

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THE RECORD DOES NOT DEMONSTRATE DEFENDANT WAS AWARE HE COULD BE DEPORTED BASED UPON HIS GUILTY PLEAS, A VIOLATION OF DUE PROCESS; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO VACATE THE GUILTY PLEAS (SECOND DEPT).

The Second Department, remitting the matter, determined defendant was not warned about the possibility of deportation based upon his guilty pleas. The matter was sent back to allow defendant to move to vacate the pleas:

The defendant’s contention that his due process rights were violated due to the Supreme Court’s failure to warn him that his pleas could subject him to deportation is excepted from the requirement of preservation because the record does not demonstrate that the defendant was aware that he could be deported as a consequence of his pleas of guilty … . Indeed, here, the record shows that the court failed to address the possibility of deportation as a consequence of the defendant’s pleas of guilty … .

… [W]e remit the matters to the Supreme Court … to afford the defendant an opportunity to move to vacate his pleas of guilty and for a report by the Supreme Court thereafter … . Upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court warned him of the possibility of deportation … . In its report to this Court, the Supreme Court shall set forth whether the defendant moved to vacate his pleas of guilty and, if so, its determination as to whether the defendant made the requisite showing or failed to make the requisite showing … . People v Jean, 2023 NY Slip Op 06380, Second Dept 12-13-23

Practice Point: If the record does not demonstrate a defendant was aware of the deportation consequences of a guilty plea, the matter will be remitted to give the defendant the opportunity to move to vacate the plea. The issue need not be preserved for appeal.

 

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ALTHOUGH PLAINTIFFS DO NOT CONTEST THE APPEALS AND WILL NOT PURSUE THE LITIGATION, THE APPEALS ARE NOT MOOT BECAUSE THE ORDER MAY AFFECT RELATED ACTIONS AGAINST THE DEFENDANTS; THE SUMMARY JUDGMENT MOTION, BROUGHT BEFORE DEFENDANTS ANSWERED THE COMPLAINT, WAS PREMATURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) despite the fact that the plaintiffs indicated they do not contest the appeals and will not pursue the action which had been dismissed, the appeals are not moot because the dismissal may affect related actions against the defendants; and (2) the plaintiff’s summary judgment motion, brought before the defendants had answered the amended complaint, was premature:

While plaintiffs do not contest the appeals and have represented that they will not be pursuing the underlying litigation, this does not render defendants’ appeals moot. The mootness doctrine will deprive a court of the ability to review a case where a change in circumstances between the parties has eliminated the controversy that once existed … . However, an appeal is not moot where “the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” … . Defendants have the right to appeal the order addressing the motion to dismiss because it may serve as unfavorable precedent in related cases that have been brought against them. Hutcher v Madison Sq. Garden Entertainment Corp., 2023 NY Slip Op 06314, First Dept 12-7-23

Practice Point: An appeal is not moot when it is not contested if the order appealed from could affect related actions against the appellants.

 

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