You are here: / Appeals
,

NON-RESPONDENT FATHER’S APPEAL OF THE PLACEMENT OF HIS CHILDREN WITH THE DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES WAS NOT MOOT; THE CHILDREN HAD BEEN PLACED WITH RELATIVES; PLACEMENT WITH THE DEPARTMENT, AS OPPOSED TO WITH RELATIVES, TRIGGERS THE POSSIBLE FUTURE TERMINATION OF FATHER’S PARENTAL RIGHTS (FOURTH DEPT).

The Fourth Department determined non-respondent father’s appeal of the placement of his children with the department of family and children’s services was not moot. The children had been placed with relatives. Placement with the department of family and children’s services, as opposed to with relatives, triggers the possible termination of father’s parental rights:

… [T]he Social Services Law provides that, whenever a child “shall have been in foster care for [15] months of the most recent [22] months . . . the authorized agency having care of the child shall file a petition” to terminate parental rights unless, as relevant here, “the child is being cared for by a relative” … . Thus, we agree with the father that his appeal from the order moving his children from relative placement to foster care is not moot because that change in placement “may, in future proceedings, affect [his] status or parental rights” …  by altering the obligations of petitioner with respect to a future petition to terminate the father’s parental rights…. . Matter of Shdaya B. (Rahdasha B.–Carlton M.), 2023 NY Slip Op 01599, Fourth Dept 3-23-23

Practice Point: Here the non-respondent father’s appeal of the placement of his children with the department of family and children’s services was not moot. The children had been placed with relatives. Placement with the department, as opposed to with relatives, triggers the possible future termination of father’s parental rights.

 

, ,

ALTHOUGH THE DEFENDANT WAS AWARE THE GUILTY PLEA MAY HAVE A NEGATIVE IMPACT ON HIS IMMIGRATION STATUS HE WAS NOT SPECIFICALLY INFORMED DEPORTATION WAS POSSIBLE; MATTER SENT BACK TO GIVE THE DEFENDANT THE OPPORTUNITY TO MOVE TO VACATE THE PLEA (SECOND DEPT). ​

The Second Department determined defendant was not informed of the possibility of deportation before entering the guilty plea, although defendant was aware the plea may have a negative impact on his immigration status.. The issue need not be preserved for appeal. The matter was sent back to afford defendant the opportunity to move to vacate the plea:

At the plea proceeding, the court questioned the defendant as to whether he had discussed with defense counsel “the possible negative impact on [his] immigration status as a result of [his] pleas of guilt.” The defendant replied: “Yes. I did explain to him that I was concerned about that.” The court then inquired whether the defendant had “an opportunity to discuss these pleas and their impact on [his] immigration status with an immigration attorney.” In response, the defendant indicated that he had discussed the matter with an immigration attorney, who had informed him of the “possibility” that he would lose “TPS [Temporary Protected Status].” The court did not advise the defendant of the possibility of deportation as a consequence of the guilty plea. People v Hernandez, 2023 NY Slip Op 01530, Second Dept 3-22-23

Practice Point: Here the negative impact of the guilty plea on defendant’s immigration status was discussed prior to his entering the plea, but the possibility of deportation was not specifically addressed. The defendant was given the opportunity to move to vacate the plea. Under the facts, preservation was not required.

 

,

EVEN WHERE A SENTENCE HAS BEEN AGREED TO BY THE DEFENDANT AS PART OF A PLEA BARGAIN, AN INTERMEDIATE APPELLATE COURT IS OBLIGATED TO CONSIDER WHETHER THE SENTENCE IS UNDULY HARSH OR SEVERE, SEPARATE AND APART FROM WHETHER THE SENTENCE IS LEGAL (CT APP).

The Court of Appeals, in two concurring opinions, determined the matter should be sent back to the Appellate Term for consideration of defendant’s argument his plea-bargained sentence (a $500 fine) was unduly harsh or severe. An appellate court’s power to reduce an unduly harsh or severe sentence can be applied, even when the sentence was part of a plea bargain:

The Appellate Term concluded that there was “no basis for reducing the fine” … . Although the Court was not required to go further and set forth the basis for its conclusion (see CPL 470.25 [1] …), here, it did so, reasoning that “[d]efendant received the precise sentence for which he had bargained, which was within the permissible statutory range” …  . In other words, the sentence was legal and bargained-for. Certainly, the Appellate Term cannot be faulted for considering and addressing the legality of the sentence because the intermediate appellate courts “cannot allow an illegal sentence to stand” … . However, the legality of the sentence was irrelevant to the entirely separate issue of whether it was unduly harsh or severe … , and it was improper for the Appellate Term to treat the bargained-for nature of defendant’s sentence as dispositive of his challenge to the severity of the sentence. People v Ba, 2023 NY Slip Op 01468, CtApp 3-21-23

Practice Point: An intermediate appellate court is constrained to consider whether a sentence is unduly harsh or severe, even where the sentence was agreed to by the defendant as part of a plea bargain.

 

,

THE THIRD DEPARTMENT HAS BEEN APPLYING THE WRONG STANDARD TO THE REDUCTION OF A SENTENCE IN THE INTEREST OF JUSTICE FOR DECADES; HOWEVER, BECAUSE THE THIRD DEPARTMENT HAS RECENTLY STOPPED APPLYING THE WRONG STANDARD, THIS APPEAL IS MOOT (CT APP),

The Court of Appeals determined the sentencing issue raised by the defendant (Baldwin) was moot. Judge Wilson, in a concurring opinion, explained that the standard applied by the Third Department for reduction of a sentence in the interest of justice is incorrect:

The question presented on this appeal is whether, for the past several decades, the Third Department has imposed an erroneous legal standard on criminal defendants seeking a reduction of their sentences in the interest of justice. Mr. Baldwin points to countless Third Department cases, including his own, in which the Third Department employed a test requiring a showing of extraordinary circumstances or abuse of discretion for it to exercise its interest of justice jurisdiction to modify a sentence. Relying on the statutory language empowering the Appellate Division to reduce “unduly harsh or severe” sentences in the interest of justice (CPL 470.15 [6] [b]), Mr. Baldwin contends that the Third Department’s test constitutes an incorrect legal standard.

Mr. Baldwin argues that the Third Department’s requirement that a defendant show a clear abuse of discretion or extraordinary circumstances is contrary to both our case law and the practices of the other Appellate Division departments. In People v Delgado, we emphasized that the Appellate Division’s “broad, plenary power to modify a sentence may be exercised, if the interest of justice warrants, without deference to the sentencing court” (80 NY2d 780, 780 [1992]). Mr. Baldwin contends that the Third Department’s standard is an outlier: it is used by no other department, and has been expressly rejected by the Fourth Department (see eg People v Thomas, 194 AD3d 1405, 1406 [4th Dept 2021] [“We are compelled to emphasize once again that, contrary to the People’s assertion, a criminal defendant need not show extraordinary circumstances or an abuse of discretion by the sentencing court in order to obtain a sentence reduction under CPL 470.15 (6) (b)”] [internal quotations omitted]).

Here, however, as Mr. Baldwin himself points out, the issue is not likely to recur. The Third Department, to its great credit, apparently noticed the pendency of this appeal and the issue it raised, after which it corrected its longstanding use of the wrong standard, making repetition of the error unlikely … . People v Baldwin, 2023 NY Slip Op 01467, CtApp 3-21-23

Practice Point: The Third Department had been using the wrong standard for the reduction of a sentence in the interest of justice for decades but has recently corrected the problem, rendering this appeal moot.

 

, , ,

INTERSTATE SOVEREIGN IMMUNITY IS AN ISSUE WHICH MUST BE RAISED BEFORE THE TRIAL COURT TO BE PRESERVED FOR APPEAL TO THE COURT OF APPEALS; HERE A NEW JERSEY TRANSIT BUS COLLIDED WITH A CAR DRIVEN BY A NEW YORK RESIDENT IN THE LINCOLN TUNNEL AND THE TRIAL WAS HELD IN NEW YORK; ALTHOUGH THE INTERSTATE SOVEREIGN IMMUNITY DEFENSE WAS VALIDATED BY THE US SUPREME COURT IN 2019, THE ISSUE WAS NOT RAISED BEFORE THE TRIAL COURT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a two-judge dissenting opinion, determined the sovereign immunity defense raised for the first time on appeal by New Jersey in this traffic accident case was not preserved for appeal to the Court of Appeals. The accident happened in the Lincoln Tunnel and involved the New York resident plaintiff and a bus owned by the defendant New Jersey Transit Corporation. New Jersey argued that the US Supreme Court had changed the law in 2019, allowing a state to preclude suit in another state absent consent thereby presenting a constitutional issue not subject to the preservation requirement. The Court of Appeals rejected that argument:

The question before us is whether we have power to hear this appeal under NY Constitution article VI, § 3 and CPLR 5601 (b) (1). To answer this threshold issue, we must consider the jurisdictional nature of interstate sovereign immunity to ascertain whether defendants’ sovereign immunity defense is exempt from our general preservation rules. We conclude that a state must preserve its interstate sovereign immunity defense by raising it before the trial court, and no exception to the general preservation rule applies. Because defendants asserted their sovereign immunity defense for the first time on appeal after the United States Supreme Court decided Franchise Tax Bd. of Cal. v Hyatt (587 US &mdash, 139 S Ct 1485 [2019] [hereinafter Hyatt III]), the argument is unpreserved in this case and there is no directly involved constitutional question supporting this appeal as of right. The appeal should therefore be dismissed. Henry v New Jersey Tr. Corp., 2023 NY Slip Op 01466, CtApp 3-21-23

Practice Point: Interstate sovereign immunity means one state cannot be sued in the courts of another state absent consent. That form of sovereign immunity was validated by the US Supreme Court in 2019. The issue, however, must be preserved by raising it in the trial court before the Court of Appeals will consider it.

 

,

TWO DISSENTERS ARGUED THE UNPRESERVED ISSUE, WHICH INVOLVED SETTLED LAW, SHOULD NOT HAVE BEEN CONSIDERED ON APPEAL (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, considered an unpreserved issue on appeal (the date from which prejudgment interest begins to run). The dissenting justices argued the unpreserved issue involved settled law and there was, therefore, no reason to consider it:

The majority assumes that the issue is unpreserved but reaches the merits of claimant’s contention through application of an exception to the preservation rule … . In other words, on this appeal as of right from a final judgment (see CPLR 5701 [a] [1]), the majority is not limiting this Court’s scope of review to those matters brought up for review pursuant to CPLR 5501 (a). We respectfully disagree with the majority to the extent that it elects to address an unpreserved issue of statewide interest inasmuch as it does nothing more than adhere to this Court’s well-settled and decades-long precedent on that particular issue . In short, under the circumstances of this case, we disagree with the majority’s decision to invoke what should be a very rare exception to rules of preservation only just to double down on our long-standing precedent. Indeed, by reaching claimant’s contention challenging that precedent, the majority fails to fully recognize that the policy reasons underlying the preservation rule, and the … rarity of times when we except from it, are “especially acute when the new issue seeks change in a long-established common-law rule,” as is the case here … . Sabine v State of New York, 2023 NY Slip Op 01455, Fourth Dept 3-17-23

Practice Point: The majority considered an unpreserved issue on appeal which involved a well-settled area of the law. Two dissenters argued the case did not justify ignoring the preservation requirement, which should be a rare occurrence reserved to new issues seeking change in the common law.

 

, ,

DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION BASED UPON AN APPELLATE DECISION WHICH CAME OUT AFTER HER APPEAL BUT BEFORE SHE APPLIED FOR PERMISSION TO APPEAL TO THE COURT OF APPEALS; THE COURT OF APPEALS DECISION WHICH HELD THE EXECUTIVE LAW ALLOWING DEFENDANT TO BE PROSECUTED BY THE “JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS” UNCONSTITUTIONAL SHOULD NOT BE APPLIED RETROACTIVELY (THIRD DEPT).

​The Third Department, reversing Supreme Court, over a two-justice concurrence, determined defendant was entitled to a hearing on her motion to vacate her conviction based on an appellate decision which came out after her appeal but before she applied for permission to appeal to the Court of Appeals. In addition, the Third Department held the Court of Appeals decision which found the statute (Executive Law § 552 (2)) authorizing her prosecution by the “Justice Center for the Protection of People with Special Needs” unconstitutional should not be applied retroactively:

Under the unique circumstances of this case, where the case defendant relies upon — Hodgdon [175 AD3d 65]— had not yet been decided at the time that her direct appeal was perfected, we find that her failure to challenge whether the Justice Center had permission to prosecute her and whether the District Attorney maintained responsibility of the prosecution was justified … . Therefore, County Court abused its discretion in concluding that it was “bound” to deny defendant’s motion under CPL 440.10 (2) (c), without a hearing, on the ground that defendant unjustifiably failed to raise the Hodgdon defense on direct appeal. … [W]e remit the matter to County Court for a hearing pursuant to CPL 440.30 (5). …

Defendant contends … she should be entitled to the benefit of the decisions in Hodgdon and People v Viviani (36 NY3d 564 [2021]), which found that Executive Law § 552 was unconstitutional to the extent that it empowered the Justice Center with concurrent prosecutorial authority … . * * *

… [T]he holding in Viviani does not go to the heart of a reliable determination of guilt or innocence … . * * *

… [D]efendant is not entitled to have the new constitutional rule articulated by Viviani applied retroactively to her matter … . People v Rice, 2023 NY Slip Op 01211, Third Dept 3-9-23

Practice Point: Defendant should have been granted a hearing on her motion to vacate her conviction based on an appellate decision which came out after defendant’s appeal but before she applied for permission to appeal to the court of appeals.

Practice Point: The Court of Appeals decision which declared the statute under which defendant was prosecuted was not applied retroactively because it did not go to the hear of a reliable determination of guilt or innocence.

 

, , ,

A JUDGE MAY NOT ORDER THAT ONLY THE ATTORNEY FOR THE CHILD (AFC), AND NOT THE DEPARTMENT OF SOCIAL SERVICES, IS ALLOWED TO DISCUSS MATTERS OF SURRENDER OR ADOPTION WITH THE CHILD; SUCH AN ORDER INTERFERES WITH THE DEPARTMENT’S STATUTORY DUTIES (THIRD DEPT).

The Third Department, reversing Family Court in a matter of first impression in this neglect proceeding, in a full-fledged opinion by Justice Clark, determined Family Court could not order the petitioner (Delaware County Department of Social Services) to refrain from discussing matters of surrender or adoption with the child. The attorney for the child (AFC) requested the order which allowed only the AFC to discuss surrender or adoption with the child. The Third Department heard the case as an exception to the mootness doctrine (the order had been vacated, but the issue is likely to recur). The Third Department concluded the order could not stand because it interfered with the petitioner’s statutory duties:

Although we recognize that circumstances may arise where it may be appropriate to allow an attorney for children reasonable time to discuss sensitive matters of importance, such as adoption or surrender, with their child-client before anyone else does, Family Court’s order was not a temporal arrangement to allow the AFC an opportunity to broach the issue with the child. Instead, the order was an outright ban on anyone, including petitioner’s caseworkers, having a discussion with the child regarding issues that are central to the child’s permanency (see Family Ct Act § 1089 [c] [1] [ii]).

Although Family Court attempted to differentiate the issues of surrender and adoption as “a legal issue distinguishable from the assessment of the child’s well-being,” the court construed the issues pertaining to the child’s well-being too narrowly, leaving petitioner in an untenable situation…. According to petitioner, for over a year, it was prevented “from speaking with the child to reassess its understanding of the child’s wishes” relative to respondent’s possible conditional surrender and a subsequent adoption of the child — issues that fall squarely into the category of permanency decisions. Although the child has a right to meaningful representation and to learn about legal issues from the AFC (see Family Ct Act § 241 …), attorneys for children cannot transform such responsibility into a roadblock, as occurred here, preventing petitioner from fulfilling its mandates and planning for the child’s permanency and well-being … . Matter of Michael H. (Catherine I.), 2023 NY Slip Op 01119, Third Dept 3-2-23

Practice Point: Family Court can not order the Department of Social Services to refrain from discussing matters of surrender or adoption with the child. Here the attorney for the child (AFC) asked Family Court for the order allowing only the AFC to discuss surrender or adoption with the child and the request was granted.

 

, ,

DEFENDANT WAS NOT GIVEN THE REQUIRED 20-DAY NOTICE OF THE SORA RISK LEVEL HEARING, A VIOLATION OF DUE PROCESS; ALTHOUGH DEFENDANT DID NOT APPEAR AT THE HEARING, HE CAN APPEAL THE UPWARD DEPARTURE TO LEVEL THREE (THIRD DEPT).

The Third Department, reversing County Court, determined petitioner could appeal the 2006 level three sex offender risk level classification, despite his failure to appear at the hearing, because he was not given 20-days notice prior to the hearing:

Although the hearing took place on June 25, 2003, defendant was only advised of it in a letter dated June 11, 2003.Accordingly, defendant’s due process rights were violated given that he was not afforded the minimum 20-day notice as required by statute … . The People respond that defendant explained in a letter sent after the June 2003 hearing that he chose not to attend that hearing because he did not think he would be classified at risk level three. This letter, however, postdated the hearing and any explanation made therein does not amount to a waiver of the right to appear at the hearing. Furthermore, defendant’s posthearing explanation does not obviate the notice requirements that defendant must be statutorily given prior to the hearing. People v Lockrow, 2023 NY Slip Op 01030, Third Dept 2-23-23

Practice Point: Here defendant was not given the required 20-day notice of the upcoming SORA risk level hearing, which violated his due process rights. He therefore could appeal the upward departure to level three.

 

, ,

THE TRIAL JUDGE DID NOT RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL; THE APPELLATE COURT CANNOT TREAT THE FAILURE TO RULE AS A DENIAL; MATTER REMITTED FOR A RULING (FOURTH DEPT). ​

The Fourth Department, remitting the matter for a ruling, determined the trial judge never ruled on defendant’s motion for a trial order of dismissal:

At the close of the People’s case, defendant moved for a trial order of dismissal, arguing … that the People failed to make a prima facie case with respect to the second count of the indictment. There is no indication in the record that the court ruled on that part of defendant’s motion. We lack the power to review defendant’s contention that the evidence is legally insufficient to support the conviction of burglary in the second degree because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . People v Desmond, 2023 NY Slip Op 00791, Fourth Dept 2-10-23

Practice Point: The trial judge’s failure to rule on a motion for a trial order of dismissal is not a denial which an appellate court can consider; here the matter was remitted for a ruling.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy