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DEFENSE COUNSEL WAITED UNTIL AFTER THE PROSECUTOR MADE SEVERAL ARGUABLY IMPROPER REMARKS IN SUMMATION BEFORE OBJECTING “TO ALL OF THIS;” THE OBJECTION WAS DEEMED UNTIMELY, VAGUE, AMBIGUOUS, GENERAL AND NONSPECIFIC; THEREFORE THE ISSUES RAISED BY THE PROSECUTOR’S REMARKS WERE NOT PRESERVED FOR APPEAL (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Dillon, over an extensive two-justice dissent, determined defense counsel did not make timely objections to remarks made by the prosecutor in summation. After several arguably improper comments by the prosecutor, defense counsel objected “to all of this.” The judge struck the only last of the prosecutor’s remarks. After the jury was charged and deliberating, defense counsel raised objections to several other remarks made by the prosecutor which were denied as untimely. The Second Department agreed the objections were not timely or specific and affirmed defendant’s conviction:

The objection of defense counsel most relevant to this appeal was to “all of this,” which was interposed only after the prosecutor likened a hypodermic needle to a dangerous instrument. The objection, as interposed, suffers from a number of problems in failing to preserve the issues now raised on appeal. First, the objection was vague and ambiguous. Second, it was untimely. Third, its language was general and nonspecific. The preservation rules … , requiring that objections be timely and specific rather than untimely and general, are basic, well-understood, and time-tested concepts, which should prompt no dispute in their application to this appellate record.

… The prosecutor had been speaking at some length, for a total of 28 uninterrupted sentences, before defense counsel interposed the objection at issue here. …

… As to [the] objection and its timing, the Supreme Court understandably treated it as applying to the last occurring statement of the prosecutor … . …

… For preservation, the defendant’s objection was … general, as it did not identify to the Supreme Court any particular argument or remark by the prosecutor or any specific basis. The basis for the objection was not explained, rendering the entire objection general and insufficient for preservation purposes … . …

Defense counsel initiated further colloquy with the Supreme Court about the subject objection after the jury had been charged and after the jury had begun its deliberations. By then, counsel’s objection was clearly untimely, as there was no longer an opportunity for the court to promptly make a curative ruling to the jury, had one even been indicated. People v Adorno, 2022 NY Slip Op 05856, Second Dept 10-19-22

Practice Point: The Second Department used this case to explain that, in order to preserve issues for appeal, objections must be timely and specific such that the trial court has the opportunity to address them. Here the prosecutor made several arguably improper remarks in summation before defense counsel objected “to all of this.” Defense counsel didn’t specify the nature of the objections until after the jury started deliberations. That was too late.

 

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FATHER WAS NOT SERVED WITH THE ORDER OF FACT-FINDING AND DISPOSITION IN THE MANNER PRESCRIBED BY FAMILY COURT ACT 1113 (FATHER WAS SERVED BY EMAIL) AND THEREFORE THE 30-DAY APPEAL DEADLINE DID NOT APPLY; FATHER’S STRIKING THE 14-YEAR-OLD CHILD ONCE DURING A MULTI-PERSON MELEE AFTER THE CHILD BROKE THE WINDOW OF FATHER’S CAR WITH A ROCK DID NOT CONSTITUTE NEGLECT (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined: (1) Family Court did not follow the statutory procedure for serving father with the order of fact-finding and disposition and, therefore, father’s appeal was timely; and (2) father’s striking the child once during a multi-person melee, after the child threw a rock at father’s car, did not constitute neglect:

… “[T]here is no evidence in the record that the father was served with the order of fact-finding and disposition by a party or the child’s attorney, that he received the order in court, or that the Family Court mailed the order to the father” … . Instead, despite using a form order that provided typewritten check boxes for the two methods of service by the court mentioned in the statute (i.e., in court or by mail) … , the court here crossed out the word “mailed” and edited the form to indicate that the order was emailed to, among others, the father’s attorney. The statute, however, does not provide for service by the court through email or any other electronic means … . … Inasmuch as 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 … .* * *

 … [W]e conclude that, “[g]iven the age of the subject child, the provocation, and the dynamics of the incident, the [father’s] act against [the child] did not constitute neglect” … . The record establishes that, during the course of a multi-person melee that included the 15-year-old sister beating up the 18-year-old daughter of the father’s girlfriend, the 14-year-old child threw a rock at the vehicle causing the window to break, to which provocation the father instantly reacted by striking the child once either in the face or the back of the head … . Petitioner presented no evidence that the child sustained any injury or required medical treatment as a result of the single strike by the father during the altercation, and the police who investigated the incident did not file any charges … . Matter of Grayson S. (Thomas S.), 2022 NY Slip Op 05649, Fourth Dept 10-7-22

Practice Point: Here father was served with the order of fact-finding and disposition by email, a method not prescribed by Family Court Act 1113. Therefore the 30-day time limit for bringing an appeal did not apply and father’s appeal was timely. Father struck the 14-year-old child once during a multi-person melee after the child broke the window of father’s car with a rock. Father’s striking the child, which did not cause injury, did not constitute neglect.

 

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A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED UPON MATTERS IN THE RECORD WHICH HAVE BEEN PRESERVED FOR APPEAL; A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (2) CAN BE BASED UPON JUROR MISCONDUCT OF WHICH THE DEFENDANT WAS NOT AWARE PRIOR TO THE VERDICT; BUT HERE THE DEFENSE WAS AWARE OF THE ALLEGED MISCONDUCT PRIOR TO THE VERDICT AND DID NOT OBJECT (FOURTH DEPT).

The Fourth Department explained that a motion to set aside a verdict pursuant to CPL 330.30 (1) or (2) cannot be based upon an issue the defense could have addressed (but did not) prior to the verdict. Although CPL 330.30 (2) allows a motion to set aside the verdict based upon juror conduct of which the defendant was not aware prior to the verdict, here the defense was aware of the alleged juror conduct:

” ‘A trial court’s authority to set aside a verdict under CPL 330.30 (1) is limited to grounds which, if raised on appeal, would require reversal as a matter of law . . . Accordingly, only a claim of error that is properly preserved for appellate review may serve as the basis to set aside the verdict’ ” … . Here, despite being afforded an opportunity to object or seek further relief when the court brought the issue to the parties’ attention during deliberations, defendant did not do so and thus failed to preserve his claim … .. The court therefore properly denied without a hearing the motion insofar as it was based on CPL 330.30 (1) because defendant’s unpreserved argument “did not furnish a proper predicate for setting aside the verdict” … .

A trial court is also authorized to set aside a verdict on the ground that “during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict” (CPL 330.30 [2] …). Here, the record establishes that the alleged juror misconduct “was addressed by the court and counsel on the record at the time of trial” and that defendant thus “had knowledge of the matter prior to the verdict” … . We therefore conclude that the court properly denied without a hearing the motion insofar as it was based on CPL 330.30 (2) because “the juror misconduct alleged was known to . . . defendant and . . . defendant had the opportunity to act on the information but failed to do so prior to the verdict” … .People v Kenney, 2022 NY Slip Op 05645, Fourth Dept 10-7-22

Practice Point: A motion to set aside the verdict pursuant to CPL 330.30 (1) must be based upon preserved errors which could be raised on appeal. A motion to set aside the verdict pursuant to CPL 330.30 (2) may be based upon juror misconduct of which the defendant was not aware prior to the verdict. Here, however, the defense was aware of the conduct and did not object.

 

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A MOTION TO SET ASIDE A JURY VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED UPON MATTERS IN THE RECORD; I.E., ISSUES THAT CAN BE RAISED ON APPEAL; HERE THE MOTION WAS BASED ON MATTERS OUTSIDE THE RECORD AND SHOULD HAVE BEEN DENIED ON THAT GROUND (FOURTH DEPT).

The Fourth Department, reversing County Court’s granting of defendant’s CPL 330.30 (1) motion to set aside the jury verdict, determined the motion was improperly based upon matters outside the record. A CPL 330.30 (1) motion must be based upon issues which can be raised on appeal:

Pursuant to CPL 330.30 (1), following the issuance of a verdict and before sentencing a court may set aside a verdict on “[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.” Defendant’s motion to set aside the verdict pursuant to CPL 330.30 (1) was procedurally improper because it was “premised on matters outside the existing trial record, and CPL 330.30 (1) did not permit defendant[] to expand the record to include matters that did not ‘appear[ ] in the record’ prior to the filing of the motion[]” … . We therefore reverse the order, deny the motion, and reinstate the verdict inasmuch as defendant’s claim was not reviewable pursuant to CPL 330.30 (1) … . People v Allen, 2022 NY Slip Op 05647, Fourth Dept 10-7-22

Practice Point: A motion to set aside a jury verdict pursuant to CPL 330.30 (1) must be based upon matters which are in the record; i.e., issues which can be raised on appeal. Here the motion was based on matters outside the record and should have been denied on that ground.

 

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CANCELLATION AND DISCHARGE OF A MORTGAGE AND VACATION OF A NOTICE OF PENDENCY MUST BE SOUGHT BY AN ACTION OR A COUNTERCLAIM PURSUANT TO RPAPL 1501, NOT, AS HERE, BY A CROSS-MOTION; THE ISSUE WAS PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s cross-motion to cancel and discharge the mortgage pursuant to RPAPL 1501(4) should not have been granted because that relief must be sought in an action or counterclaim, not by motion. The issue was properly raised for the first time on appeal:

Supreme Court should not have granted that branch of the cross motion which was pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage and vacate the notice of pendency, since relief pursuant to RPAPL 1501(4) must be sought in an action or counterclaim and not by motion … . Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record and could not have been avoided if brought to the attention of the Supreme Court … . U.S. Bank N.A. v O’Rourke, 2022 NY Slip Op 05558, Second Dept 10-5-22

Practice Point: Cancellation and discharge of a mortgage and vacation of a notice of pendency pursuant to RPAPL 1501(4) must be sought by an action or a counterclaim, not, as in this case, by a cross-motion. The issue may be raised for the first time on appeal because it is a matter of law and could not have been avoided had it been raised in Supreme Court.

 

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THE AMOUNT OF RESTITUTION IS PART OF THE SENTENCE AND MUST BE PRONOUNCED AT SENTENCING; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL AND SURVIVES A WAIVER OF APPEAL (SECOND DEPT).

The Second Department determined the judge’s failure to pronounce the amount of restitution at sentencing required vacating the imposition of restitution and remitting the matter for further proceedings. The issue does not need to be preserved for appeal and is not precluded by a waiver of appeal:

“CPL 380.20 and 380.40(1) collectively require that courts ‘must pronounce sentence in every case where a conviction is entered’ and that—subject to limited exceptions not relevant here—'[t]he defendant must be personally present at the time sentence is pronounced'” … . “Restitution is a component of the sentence to which CPL 380.20 and 380.40(1) apply” … . A violation of CPL 380.20 or 380.40(1) “may be addressed on direct appeal notwithstanding a valid waiver of the right to appeal or the defendant’s failure to preserve the issue for appellate review” … .

Here, it is undisputed that the precise dollar amount of restitution was not pronounced by the County Court at the time of sentencing, or at any other point on the record. “The County Court should have, but failed to, fix the amount and terms of restitution at the time it pronounced the sentence[s] of which restitution was to be a part” … . People v Long, 2022 NY Slip Op 05545, Second Dept 10-5-22

Practice Point: Restitution is part of the sentence and must be pronounced at sentencing. The issue need not be preserved for appeal and survives a waiver of appeal.

 

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APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE A MOTION ALERTING THE APPELLATE COURT TO A COURT OF APPEALS DECISION WHICH CAME DOWN AFTER THE BRIEFS WERE FILED BUT BEFORE THE APPELLATE RULING; MOTION FOR WRIT OF ERROR CORAM NOBIS GRANTED (FOURTH DEPT).

The Fourth Department granted the defendant’s motion for writ of error coram nobis on the ground appellate counsel was ineffective. Although the Court of Appeals decision mandating that sentencing judges consider youthful offender status came down after the briefs were filed, appellate counsel should have made a motion to raise the issue:

Defendant contends that he was denied effective assistance of appellate counsel because counsel failed to raise an issue on direct appeal, specifically, whether Supreme Court failed to determine whether defendant should be afforded youthful offender status. Upon our review of the motion papers and under the circumstances presented here, we conclude that appellate counsel’s representation was not constitutionally adequate. “As held by the Court of Appeals in People v Rudolph (21 NY3d 497, 501 [2013]), CPL 720.20 (1) requires ‘that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain’ ” …  Here, there is nothing in the record demonstrating that the court considered whether to adjudicate defendant a youthful offender, even though defendant, who was convicted of manslaughter in the first degree (Penal Law § 125.20 [1]) was presumably eligible … . Although the Court of Appeals decided Rudolph after appellate counsel filed the briefs on appeal and shortly before this Court affirmed defendant’s judgment on appeal, the standard of meaningful representation required appellate counsel to, after Rudolph was decided, seek to file an appropriate motion in this Court in order to raise the argument that Rudolph requires that the sentence must be vacated and the matter remitted for determination of defendant’s youthful offender status …  The order of July 5, 2013 is vacated and this Court will consider the appeal de novo … . Defendant is directed to file and serve his records and brief with this Court on or before January 23, 2023. People v Nathan, 2022 NY Slip Op 05479, Fourth Dept 9-30-22

Practice Point: A motion for writ of error coram nobis is a post-appeal tool for arguing appellate counsel was ineffective. Here a Court of Appeals decision requiring sentencing judges to consider youthful offender status even if not raised by the defendant came down after the briefs were filed but before the ruling. Appellate counsel was ineffective for failing to make a motion alerting the appellate court to the new law.

 

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TINTED WINDOWS CONSTITUTED A VALID REASON FOR THE VEHICLE STOP; THE VALIDITY OF THE IMPOUNDMENT OF DEFENDANT’S VEHICLE AND THE INVENTORY SEARCH WERE NOT PRESERVED FOR APPEAL; THE DISSENT ARGUED THE TINTED-WINDOWS STOP, THE IMPOUNDMENT AND THE INVENTORY SEARCH WERE INVALID (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined (1) the vehicle stop based upon tinted windows was valid, (2) the impoundment of defendant’s vehicle (defendant did not have a license); was proper, and (3) the inventory search of the vehicle was valid: Marijuana and and a firearm were found in the search of the vehicle:

… [W]indow tint violations are a recognized basis for stopping a motor vehicle. The legal test, according to the Court of Appeals, is whether the police officer reasonably believes the windows to be over-tinted in violation of Vehicle and Traffic Law § 375(12-a)(b) … . Officer Sepulveda’s testimony that he could not see into the defendant’s vehicle meets that test. …

The defendant’s contention on appeal that the impoundment and initial inventory search of the Nissan was unlawful was not raised before the Supreme Court and is therefore unpreserved for appellate review (see CPL 470.05[2] …), and we decline to reach that contention in the exercise of our interest of justice jurisdiction…. .

From the dissent:

I respectfully dissent in part and vote to reverse the judgment insofar as reviewed for several reasons. First, the People failed to establish a sufficient basis for the police stop of the defendant’s vehicle. Second, the People failed to establish the legality of the impoundment of the defendant’s vehicle. Third, the People failed to establish the validity of the purported inventory search of the defendant’s vehicle. People v Biggs, 2022 NY Slip Op 05328, Second Dept 9-28-22

Practice Point: Tinted windows is a valid reason for a vehicle stop. The extensive dissent in this case called into question the validity of the tinted-windows stop, the impoundment of the vehicle and the inventory search of the vehicle.

 

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THE TWO-JUSTICE DISSENT DID NOT PRESENT A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS; THE ORDER DENYING SUMMARY JUDGMENT DID NOT NECESSARILY AFFECT THE FINAL JUDGMENT (CT APP).

The Court of Appeals, dismissing the appeal, in a brief memorandum decision, held that the two-justice dissent (which would normally require review by the Court of Appeals) did not present a reviewable question of law:

… [A]ppeal dismissed, with costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law which would be reviewable by the Court of Appeals (see CPLR 5601 [a]; 5501 [a] [1]). The dissent was predicated on an order denying partial summary judgment that did not necessarily affect the judgment from which the appeal was taken (see Bonczar v American Multi-Cinema, Inc., 38 NY3d 1023 [2022]). Shaw v City of Rochester, 2022 NY Slip Op 05197, Ct App  9-15-22

Below is the summary of Bonczar v American Multi-Cinema, Ins. (cited by the Court of Appeals in Shaw, supra):

The Court of Appeals determined the Appellate Division order denying summary judgment in this Labor Law 240(1) ladder-fall case did not “affect the final judgment” after trial. Therefore the order was not appealable to the Court of Appeals:

The 2018 Appellate Division order may be reviewed on appeal from a final paper only if, pursuant to CPLR 5501 (a), the nonfinal order “necessarily affects” the final judgment. “It is difficult to distill a rule of general applicability regarding the ‘necessarily affects’ requirement” … and “[w]e have never attempted, and we do not now attempt, a generally applicable definition” … . That said, to determine whether a nonfinal order “necessarily affects” the final judgment, in cases where the prior order “str[uck] at the foundation on which the final judgment was predicated” we have inquired whether “reversal would inescapably have led to a vacatur of the judgment” … . This is not such a case. In other cases, we have asked whether the nonfinal order “necessarily removed [a] legal issue from the case” so that “there was no further opportunity during the litigation to raise the question decided by the prior non-final order” … .

In resolving plaintiff’s summary judgment motion, the Appellate Division held that factual questions existed as to whether a statutory violation occurred and as to proximate cause, or more specifically as to whether plaintiff’s own acts or omissions were the sole proximate cause of the accident … . That nonfinal order did not remove any issues from the case. Rather, the question of proximate cause and liability was left undecided. The parties had further opportunity to litigate those issues and in fact did so during the jury trial. Bonczar v American Multi-Cinema, Inc., 2022 NY Slip Op 02835, CtApp 4-28-22

Practice Point: A nonfinal order is not appealable to the Court of Appeals unless it “affects the final judgment.” If questions of fact remain after the nonfinal order is issued, the order does not “affect the final judgment” and is not appealable. Here the nonfinal order was the Appellate Division’s denial of plaintiff’s summary judgment motion. The order left open factual questions resolved at trial. Therefore the order did not “affect the final judgment.”

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THERE WAS NO EVIDENCE MOTHER PREVIOUSLY FILED FRIVOLOUS VISTATION PETITIONS; THE JUDGE SHOULD NOT HAVE PROHIBITED HER FROM FILING FUTURE PETITIONS WITHOUT LEAVE OF COURT (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the judge should have prohibited mother from filing visitation petitions without leave of court:

The Family Court should not have prohibited the mother from filing petitions for visitation after October 22, 2021, without written leave of the court, since there is no basis in the record to demonstrate that the mother filed frivolous petitions or filed petitions out of ill will or spite … . Matter of Genao-Archibald v Archibald, 2022 NY Slip Op 05166, Second Dept 9-14-22

Practice Point: If there is no evidence in the record that mother previously filed frivolous or spiteful petitions for visitation, the appellate court will reverse a judge’s prohibition of future petitions without leave of court.

 

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