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THE PROVISION OF MENTAL HYGIENE LAW SECTION 10 THAT ALLOWS A COURT TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE PETITIONER, WHO HAD BEEN RELEASED TO A STRICT AND INTENSIVE SUPERVISION AND TREATEMENT (SIST) REGIMEN, IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT IS NOT UNCONSTITUTIONAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this habeas corpus proceeding, determined the “provision of Mental Hygiene Law § 10.11(d)(4) that directs the court to determine whether there is probable cause to believe that a respondent in a proceeding pursuant to Mental Hygiene Law article 10 is a dangerous sex offender requiring confinement based upon a review of the allegations in a petition for confinement and any accompanying papers does not violate that respondent’s federal or state rights to due process.” The court further determined the issue raised here might recur so the appeal was not rendered moot by the petitioner’s release “to a regimen of strict and intensive supervision and treatment (… SIST):

Mental Hygiene Law § 10.11 permits the court to revoke a regimen of SIST upon a violation of SIST conditions and sets forth the required procedures for such a revocation … . The statute provides, as relevant here, that if a parole officer has “reasonable cause to believe” that a sex offender requiring SIST has violated a condition thereof, the offender can be taken into custody for five days for an evaluation by a psychiatric examiner, and the attorney general and the Mental Hygiene Legal Service (hereinafter MHLS) are to be promptly notified … . The attorney general may then file a petition for confinement within five days after the offender is taken into custody, which petition must be served promptly on MHLS, and counsel must be appointed for the offender … . If a petition for confinement is filed, “the court shall promptly review the petition and, based on the allegations in the petition and any accompanying papers, determine whether there is probable cause to believe that the [offender] is a dangerous sex offender requiring confinement” … . There is no provision permitting the offender an opportunity to be heard prior to the probable cause determination. Once the probable cause determination is made, the offender may be retained pending the conclusion of the proceeding … . “Within thirty days after a petition for confinement is filed . . . , the court shall conduct a hearing” to make a final determination, but the failure to commence the hearing within that time period does not result in dismissal of the petition or “affect the validity of the hearing or the determination” … . People ex rel. Neville v Toulon, 2023 NY Slip Op 02015, Second Dept 4-19-23

Practice Point; The provision of Mental Hygiene Law section 10 that allows a court to determine whether there is probable cause to believe petitioner, who had been released to a SIST regimen, is a dangerous sex offender requiring confinement is not unconstitutional.

Practice Point: Although at the time of this appeal in this habeas corpus proceeding petitioner had been released to a SIST regimen, the issue is likely to recur so the “exception to the mootness doctrine” doctrine was invoked.

 

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DEFENDANT’S BURGLARY CONVICTION WAS BASED SOLELY ON A SODA CAN WITH HIS DNA ON IT; THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT). ​

The First Department determined the burglary conviction was against the weight of the evidence:

The verdict convicting defendant of a burglary of a doctor’s office that occurred in July 2015 was against the weight of the evidence … . Defendant was connected to this burglary solely through the presence of his DNA on an opened soda can in the reception area. The office manager’s testimony failed to address whether there was any innocent explanation for the presence of defendant, or of the soda can, at that location. … . People v Taylor, 2023 NY Slip Op 01848, First Dept 4-6-23

Practice Point: Defendant was convicted of the burglary of a doctor’s office based solely on the presence of a soda can with his DNA on it in the reception area. The testimony did not address whether there was an innocent explanation for the presence of the soda can. The conviction was against the weight of the evidence.

 

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BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT AN ENUMERATED OFFENSE UNDER SORA, THEREFORE DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER; THE WAIVER OF APPEAL WAS INVALID (THIRD DEPT).

The Third Department determined defendant was not required to register as a sex offender because the offense to which he pled guilty, burglary as a sexually motivated felony, is not one of offenses to which SORA applies. In addition, the Third Department held defendant’s waiver of appeal was invalid:

… [W]e agree with the analysis of our colleagues in the First and Second Departments concluding that registerable offenses subject to SORA are, by application of the clear statutory text, limited to those crimes expressly identified as “[s]ex offense[s]” pursuant to Correction Law § 168-a (2) … . As burglary in the third degree as a sexually motivated felony is not among the offenses enumerated therein, we agree that defendant was improperly required to register as a sex offender pursuant to SORA … . …

During the plea colloquy, County Court did not explain that certain appellate rights would survive the waiver of appeal and instead improperly described the rights to be waived as encompassing “any argument” that defendant might take to a higher court … . The written waiver, in turn, states that “[i]t is [defendant’s] understanding and intention that [his] plea agreement and sentence will be a complete and final disposition of this case.” Although the written appeal waiver also includes qualifying language limiting its application “to all legal issues that can be waived under the law[,]” and the court confirmed that defendant had discussed the waiver with counsel … , we find that the “totality of the circumstances” presented here fails to confirm that defendant understood that some appellate review would survive the waiver … . People v Winter, 2023 NY Slip Op 01820, Third Dept 4-6-23

Practice Point: A defendant may not be required to register as a sex offender if convicted of a crime not listed in the Correction Law. Burglary as a sexually motivated felony is not listed.

Practice Point: The failure to inform the defendant that, despite the waiver of appeal, certain issues remain appealable, renders the waiver of appeal invalid.

 

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THE THIRD DEPARTMENT, REVERSING THE NEGLECT FINDINGS AGAINST MOTHER, DETERMINED THE SYSTEM FAILED MOTHER WHO WAS DEALING WITH EXTREMELY DIFFICULT CIRCUMSTANCES AND WHO WAS UNSUCCESSFULLY SEEKING HELP FROM PETITIONER FROM THE OUTSET; EVEN THE APPEALS PROCESS FAILED HER BECAUSE IT TOOK TOO LONG (THIRD DEPT). ​

The Third Department, reversing Family Court’s neglect findings, noted that mother was dealing with extremely difficult circumstances, including an abusive and violent father, and, from the outset, was desperately seeking assistance from the petitioner (the county department of social services) which was not provided. The Third Department noted that the appeal should have been brought much sooner, and the failure to do so may have resulted in the unjustified separation of mother from her children for years. In the words of the court: “it … appears that we have failed to address the pressing needs of this family, and the children, at each step:”

An adjudication of neglect based upon emotional impairment must include a determination “that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care” … .  As the oldest child’s emotional difficulties are, at least to some great extent, properly attributed to the trauma he experienced [father beating mother], rather than any failing of the mother, his condition does not support the neglect finding. Family Court further concluded that the other two children were neglected because the oldest child’s behaviors presented a risk to his siblings’ physical well-being. However, at no point did petitioner proffer evidence that either of the younger siblings had been injured by the oldest child, nor is there any evidence that such physical harm was imminent; at most, this conclusion is premised upon possible future harm, which is insufficient to support an adjudication of neglect … .

… [W]hile leaving children unattended, even for a brief period, can constitute a failure to exercise a minimum degree of parental care under certain circumstances … , it does not amount to neglect in all cases, even in certain circumstances where the unattended child is accidentally injured … . Here, considering the surrounding circumstances, we do not find that the evidence revealed such a failure. Nor will we fault the mother for her inability to control all three young children while attending to their various needs — as was the case in the incidents where the youngest child was left in a foam infant seat on a table and where the two older children ran outside of the shelter — or while taking care of necessary chores — as was the case in the incident where the youngest child fell out of a baby carriage. In our view, the mother’s conduct during these alleged incidents of neglect did not fall below a minimum degree of parental [*4]care; nor were the children physically impaired, and it was not demonstrated that any sort of impairment was imminent … . Matter of Alachi I. (Shelby J.), 2023 NY Slip Op 01822, Third Dept 4-6-23

Practice Point: Here mother was dealing with an abusive, violent father and an older child who was difficult to control. She unsuccessfully sought assistance from the social services department from the outset. The Third Department determined the neglect findings based upon the behavior of the older child were baseless and the instances where children were briefly unattended did not amount to neglect. Even the appeals process failed mother because it took years, which necessarily affected her ability to stay connected with her children.

 

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WHEN A JUDGE MAKES A WRONG RULING WHICH CANNOT BE APPEALED BECAUSE IT WAS NOT PROMPTED BY A MOTION, A MOTION TO SET ASIDE THE ORDER PURSUANT TO CPLR 5015 IS AN APPROPRIATE REMEDY; THE DENIAL OF THE MOTION TO SET ASIDE CAN BE APPEALED, AS WAS SUCCESSFULLY DONE HERE (FIRST DEPT).

​The First Department, reversing Supreme Court, determined Supreme Court should not have dismissed the complaint pursuant to CPLR 3216 because no motion to dismiss had been made and plaintiff was not given any warning or an opportunity to respond. The court noted that when a judge makes a wrong ruling, here the dismissal of the complaint, the proper procedure is a motion to set aside the order pursuant to CPLR 5015. The motion to set aside should have been granted:

A trial court has inherent power, as well as statutory power under CPLR 5015, to set aside an order on appropriate grounds … . “Vacating the dismissal order is consistent with the public policy of this State to dispose of cases on their merits and upholds the principle that a trial court’s power to dismiss an action sua sponte should be used sparingly and only in extraordinary circumstances” … .

There were no extraordinary circumstances warranting the complaint’s dismissal. Wohnberger v Lucani, 2023 NY Slip Op 01758, First Dept 3-30-23

Practice Point: Here no motion to dismiss the complaint pursuant to CPLR 3216 was made, but the judge dismissed the complaint sua sponte. A motion to set aside the order dismissing the complaint pursuant CPLR 5015 was made and denied. The denial was then successfully appealed here. This is the appropriate remedy when no appeal lies from the original order because the order was not issued pursuant to a motion.

 

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THE TOWN BOARD’S FAILURE TO PROVIDE ITS REASONS FOR ITS RULING IN THIS VARIANCE PROCEEDING AND THE BOARD’S FAILURE TO MAKE ADEQUATE FINDINGS OF FACT REQUIRED THE APPELLATE COURT TO REMIT THE MATTER FOR THE SECOND TIME UNDER THREAT OF SANCTIONS (FOURTH DEPT).

The Fourth Department, sending the matter back to the Town Board for the second time in this variance proceeding, determined the board’s failure make adequate findings of fact and explain the reasons for its decision precluded appellate review:

Generally, “[f]indings of fact which show the actual grounds of a decision are necessary for an intelligent judicial review of a quasi-judicial or administrative determination” … . Here, we conclude that the Town Board has once again precluded intelligent judicial review of its determination inasmuch as its “purported findings of fact are speculative and mere conclusions and contain very little[, if any,] factual matter” … . The Town Board “must do more than merely restate the terms of the applicable ordinance” and the procedural history preceding and subsequent to the determination; rather, the Town Board must set forth “findings of the facts essential to its conclusion” to grant the variance in the first instance—i.e., the determination that is the subject of the appeal … . Given that the Town Board has “failed to articulate the reasons for its determination and failed to set forth …, we continue to hold the case, reserve decision and remit the matter to the Town Board to properly set forth the factual basis for its determination within 30 days of the date of entry of the order of this Court. We remind the parties that “[a]n attorney or party who fails to comply with a[n] . . . order of th[is C]ourt . . . shall be subject to such sanction as [we] may impose” upon motion or our own initiative after the attorney or party has a reasonable opportunity to be heard (22 NYCRR 1250.1 [h]). Matter of Guttman v Covert Town Bd., 2023 NY Slip Op 01632, Fourth Dept 3-24-23

Practice Point: An appellate court cannot review a Town Board’s ruling in a variance proceeding when the board does not explain its ruling and make findings of fact. Here the matter was sent back to the board for its reasons and findings of fact for a second time, under threat of sanctions.

 

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​ A WAIVER OF APPEAL NOT MENTIONED UNTIL SENTENCING IN INVALID; MATTER REMITTED FOR A DECISION ON DEFENDANT’S MOTION TO REDACT STATEMENTS MADE WITHOUT COUNSEL FROM THE PREPLEA INVESTIGATION REPORT (FOURTH DEPT).

The Fourth Department, remitting the matter, determined (1) the waiver of the right to appeal was invalid because the waiver was not mentioned until sentencing, after defendant pled guilty, and (2) the judge never decided defendant’s request to have certain statements, made without counsel, redacted from the preplea investigation report:

A waiver of the right to appeal is not effective where, as here, it is not mentioned until sentencing, after defendant pleaded guilty … . …

Defendant … contends that Supreme Court erred in failing to redact from the preplea investigation report statements that defendant made during the preplea investigation interview, because those statements were made without the presence of counsel. … [D]efendant preserved the issue for our review by moving to redact the statements from the preplea investigation report … . The court stated that it was reserving decision, but there is no indication in the record that the court ever issued a decision. It is well settled that a court’s failure to rule on a motion cannot be deemed a denial thereof . We therefore hold the case, reserve decision, and remit the matter to Supreme Court to determine defendant’s motion.  People v Wallace, 2023 NY Slip Op 01616, Fourth Dept 3-24-23

Practice Point: A waiver of appeal not mentioned until sentencing is invalid.

Practice Point: When a judge fails to decide a motion, here a motion to redact statements from the preplea investigation report, the appellate court cannot consider the motion to have been denied and must remit for a decision.

 

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THE IMPOSITION OF TWO CONSECUTIVE PERIODS OF POSTRELEASE SUPERVISION WAS ILLEGAL (FOURTH DEPT).

The Fourth Department determined consecutive periods of post release supervision should not have been imposed. Although the issue was not raised on appeal, an appellate court cannot allow an illegal sentence to stand:

… [T]he court erred in imposing consecutive periods of postrelease supervision. Penal Law § 70.45 (5) (c) requires that when a person is subject to two or more periods of postrelease supervision, those periods merge with and are satisfied by the service of the period having the longest unexpired time to run … . Because we cannot allow an illegal sentence to stand … , we modify the judgment accordingly…. . People v Koeberle, 2023 NY Slip Op 01605, Fourth Dept 3-24-23

Practice Point: Here the imposition of two consecutive periods of postrelease supervision was illegal. The issue was not raised on appeal, but an appellate court cannot allow an illegal sentence to stand.

 

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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.

 

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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.

 

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