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RE: A MOTION FOR TEMPORARY CUSTODY, IF ALLEGATIONS IN THE AFFIDAVITS ARE CONTROVERTED, A HEARING MUST BE HELD; TO BASE A TEMPORARY-CUSTODY RULING ON CONTROVERTED ALLEGATIONS IS AN ERROR OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined controverted allegations in the affidavits required a hearing on the motion for temporary residential custody of the child:

… [W]hile temporary custody may generally “be properly fixed without a hearing where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing” … .

… [T]he record demonstrates disputed factual issues so as to require a hearing on the plaintiff’s motion, in effect, for temporary primary residential custody of the child … . Chukwuemeka v Chukuemeka, 2022 NY Slip Op 04287, Second Dept 7-6-22

Practice Point: A motion for temporary custody may be decided on the papers if the allegations are not controverted. If allegations are controverted, it is an error of law to determine the issue without a hearing.

 

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THE AMOUNT OF RESTITUTION WAS NOT PROVEN BY A PREPONDERANCE OF THE EVIDENCE; ALTHOUGH UNPRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department reversed the determination of the amount of restitution and remitted for a hearing. The error was not preserved and was considered in the interest of justice. The court further noted that the recipient of the restitution was not put on the record:

… [T]he People failed to establish the victim’s actual out-of-pocket loss by a preponderance of the evidence. The restitution amount ordered by the court deviated from the loss claimed by the restaurant manager in his testimony, and the sole evidence supporting the actual amount of out-of-pocket loss calculated by the court was an undetailed, vague letter ostensibly from the restaurant franchisee’s insurer listing an amount of loss—the calculation and accuracy of which was, by their own representation at the hearing, unknown to the People … . People v Piasta, 2022 NY Slip Op 04243, Fourth Dept 7-1-22

Practice Point: Here the amount of restitution was not proven by a preponderance of the evidence. The recipient of the restitution was not identified on the record. Although the errors were not preserved, they were considered in the interest of  justice. The matter was remitted for a hearing.

 

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IF AN APPELLATE ISSUE IS NOT LISTED IN THE NOTICE OF APPEAL, THE ISSUE IS NOT BEFORE THE APPELLATE COURT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined summary judgment was precluded by questions of fact in this action stemming from defendants’ blocking of a tunnel leading to plaintiffs’ parking garage. Plaintiffs alleged they own the rights to the easement created for the construction of the tunnel. The tunnel goes under the Rath Erie County Office Building and was apparently blocked by county officials for security reasons. The decision addresses declaratory judgment, breach of contract, trespass and appeal issues. Only the appeal issue is summarized here. If an appellate issue is not listed in the notice of appeal, the issue is not before the appellate court:

… [P]laintiffs’ contention on the cross appeal that the court erred in denying that part of the motion seeking a permanent injunction is not properly before us. In their notice of cross appeal, plaintiffs indicate that they are cross-appealing from the order “to the extent that the [c]ourt reached a determination as set forth in paragraph ‘e’ finding that the actions taken by . . . [d]efendants . . . constitute a taking.” It is well settled that, where a party files a notice of cross appeal indicating that it is appealing from a specific part of an order, that party “is limited by its notice of cross appeal to arguing only with respect to the” part of the order listed in the notice … . Pearl St. Parking Assoc. LLC v County of Erie, 2022 NY Slip Op 04235, Fourth Dept 7-1-22

Practice Point: When a party appeals from an order, only those portions of the order listed in the notice of appeal are before the court. If a portion of the order is not listed, the appellate court will not consider it.

 

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DEFENDANT WAS CONCERNED HIS INCARCERATED BROTHER WAS BEING HARASSED BY CORRECTIONS OFFICERS; HE CALLED THE DEPARTMENT OF CORRECTIONS AND THREATENED TO “BLOW AN OFFICER’S HEAD OFF” “IF THEY TOUCH MY BROTHER;” DEFENDANT’S “MAKING A TERRORISTIC THREAT” CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).

The Third Department, reversing defendant’s “making a terroristic threat” conviction, determined the conviction was against the weight of the evidence. Defendant’s brother was incarcerated. Defendant was concerned that his brother was being harassed by corrections officers. Defendant allegedly called the Department of Corrections and Community Supervision and said he would “blow an officer’s head off” “if they touch my brother:”

…”[A] person is guilty of making a terroristic threat when[,] with intent to . . . affect the conduct of a unit of government by murder, . . . he or she threatens to commit . . . a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense” (Penal Law § 490.20 [1]). Penal Law article 490 was enacted following the September 11, 2001 attacks and was “specifically designed to combat the evils of terrorism” … . Accordingly, “[t]he concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act” …  ….

… [T]he evidence fails to establish that defendant “cause[d] a reasonable expectation or fear of the imminent commission” of an offense under the factual circumstance presented here (Penal Law § 490.20 [1]). Neither the first investigator nor the supervisor took any actions to warn the correctional facility or any other agency or individuals of the threat. While a notice was eventually issued, this was not done until well after the initial threat was made. None of the witnesses provided any testimony that they or anyone else had a reasonable expectation or fear that the threat would be imminently carried out, nor did their actions indicate any such belief. People v Santiago, 2022 NY Slip Op 04196, Third Dept 6-30-22

Practice Point: Here defendant’s statement he would “blow an officer’s head off” “if they touch my brother” did not cause the investigators who heard the statement to expect or fear the imminent commission of the offense, which is an element of “making a terroristic threat.” Defendant’s conviction was therefore against the weight of the evidence. The decision cautions against interpreting the “terroristic threat” statute loosely.

 

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THE UNEXPLAINED FAILURE TO SEE A VEHICLE BEFORE COLLIDING WITH IT, WITHOUT MORE, DOES NOT RISE TO THE LEVEL OF CRIMINAL NEGLIGENCE; THE EVIDENCE OF CRIMINAL NEGLIGENCE WAS LEGALLY INSUFFICIENT (THIRD DEPT). ​

The Third Department, reversing defendant’s criminally negligent homicide conviction and dismissing the indictment, determined defendant’s failure to see the victim’s vehicle on the side of the highway until it was too late did not rise to the level of criminal negligence (legally insufficient evidence). The victim was in a pickup truck with a sign on the back warning drivers that roadwork was being done ahead:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he [or she] causes the death of another person” … . “A defendant acts with criminal negligence in this context when the defendant ‘fails to perceive a substantial and unjustifiable risk’ that death will result” … . “That ‘risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation'” … . “[C]riminal liability cannot be predicated on every act of carelessness resulting in death[;] . . . the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and that . . . carelessness must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” … . As such, a defendant must “engage[] in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of death” … . Importantly, “nonperception of a risk, even if death results, is not enough” … . …

… [T]he Court of Appeals has held that “[t]he unexplained failure of a driver to see the vehicle with which he [or she] subsequently collided does not, without more, support a conviction for the felony of criminally negligent homicide” … . People v Faucett, 2022 NY Slip Op 04195, Third Dept 6-30-22

Practice Point: This case includes a detailed description of the criteria for criminal negligence. In the context of a traffic accident, the defendant’s unexplained failure to see the other vehicle until it was too late, without more, does not constitute criminal negligence.

 

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DEFENDANT’S STATEMENTS DURING THE PLEA ALLOCUTION NEGATED ELEMENTS OF THE CHARGED OFFENSE; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY OR GIVEN THE DEFENDANT THE OPPORTUNITY TO WITHDRAW HIS PLEA; THIS ISSUE FALLS WITHIN AN EXCEPTION TO THE PRESERVATION REQUIREMENT (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the defendant made statements during the plea allocution which negated elements of criminal possession of a weapon. At that point, the sentencing judge should have made an inquiry. This issue falls within an exception to the preservation requirement:

Penal Law § 265.03 (3) requires the possession of a “loaded firearm,” meaning “an operable gun with either live ammunition in the gun or held on [the defendant’s] person” with the gun … . … [D]efendant negated that element at sentencing when he stated that the handgun in question was in his bedstand drawer, not on his person, and that it “wasn’t loaded.” At that point, it was incumbent upon County Court to either “conduct a further inquiry or give . . . defendant an opportunity to withdraw the plea” … . People v Reese, 2022 NY Slip Op 04194, Third Dept 6-30-22

Practice Point: When a defendant makes statements during the plea allocution which negate an element of the charged offense, the judge must make an inquiry or give the defendant the opportunity to withdraw the plea. The error need not be preserved for appeal.

 

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HERE DEFENDANT PLED GUILTY TO A SUPERIOR COURT INFORMATION (SCI) AFTER HE HAD BEEN INDICTED; THE WAIVER OF INDICTMENT WAS INVALID AND THE SCI WAS DISMISSED; THE ERROR IS JURISDICTIONAL AND NEED NOT BE PRESERVED BY OBJECTION (THIRD DEPT).

The Third Department reversed defendant’s judgment by guilty plea and dismissed the superior court information (SCI). A defendant cannot be prosecuted by an SCI after indictment (defendant here had already been indicted). The error is jurisdictional and need not be preserved by objection. The issue is not forfeited by a guilty plea:

As the Court of Appeals has observed, “[g]iven the objective and the plain language of CPL 195.10 (2) (b), the conclusion is inescapable that waiver cannot be accomplished after indictment . . ., even where it is the defendant who orchestrates the scenario” … .

Here, at the point in time when defendant agreed to be prosecuted by way of an SCI, defendant already had been indicted and the matter was scheduled for trial. Although the indictment subsequently was dismissed, there is no indication in the record that the dismissal was occasioned by a defect in the indictment itself (see CPL 210.20) or that Supreme Court authorized resubmission of the charge to the grand jury (see CPL 210.45 [9]), and it does not appear that a new felony complaint was filed. “Therefore, defendant was not placed on a formal preindictment procedural track” … . Under these circumstances, the waiver of indictment is invalid and the resulting SCI must be dismissed … . People v Michalski, 2022 NY Slip Op 04190, Third Dept 6-30-22

Practice Point: Here the defendant was already indicted when he waived indictment and pled guilty to a superior court information (SCI). That was a jurisdictional error which need not be preserved by objection.

 

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COUNTY COURT DISMISSED THE PROMOTING PRISON CONTRABAND COUNT; THE PEOPLE APPEALED; COUNTY COURT THEN STAYED ITS DISMISSAL, HELD A TRIAL, AND DEFENDANT WAS CONVICTED; AFTER THE CONVICTION THE PEOPLE’S APPEAL WAS DISMISSED AS MOOT; THE DEFENDANT APPEALED; THE JUDGE HAD NO AUTHORITY TO STAY THE DISMISSAL AND GO TO TRIAL ON THAT COUNT; THE CONVICTION WAS THEREFORE VACATED (THIRD DEPT).

The Third Department, vacating defendant’s promoting-prison-contraband conviction, determined the trial judge, who had initially dismissed the promoting-prison-contraband count, should not have subsequently stayed the dismissal and gone to trial on the promoting-prison-contraband count with the other charges. Apparently the judge stayed the dismissal of the charge because the People had appealed the dismissal. After the trial, the People’s appeal was dismissed as moot. Then the defendant appealed and argued the judge did not have the statutory authority to stay the dismissal and go to trial on the dismissed count:

We agree with defendant that County Court improperly stayed its dismissal order. The People had appealed to this Court pursuant to CPL 450.20 (1). In pertinent part, that provision authorizes the People to appeal, as of right, from an order that dismissed an accusatory instrument or a count thereof pursuant to CPL 210.20. Except as provided for in CPL 460.40, the taking of an appeal from a judgment, sentence or order does not automatically stay the execution thereof. With respect to appeals by the People to an intermediate appellate court, an automatic stay results only in the case of an appeal pursuant to CPL 450.20 (1-a) “from an order reducing a count or counts of an indictment or dismissing an indictment and directing the filing of a prosecutor’s information” or an appeal pursuant to CPL 450.20 (1) “from an order dismissing a count or counts of an indictment charging murder in the first degree” (CPL 460.40 [2]). Plainly, none of those circumstances are present. * * *

… [T]here was no statutory authorization for a stay of County Court’s dismissal order. Without a stay, the bench trial should not have included the charge of promoting prison contraband in the first degree, and, thus, there should have been no occasion for defendant to be convicted of the lesser included offense of promoting prison contraband in the second degree. Accordingly, we vacate that conviction. People v Felli, 2022 NY Slip Op 04192, Third Dept 6-30-22

Practice Point: With certain exceptions in CPL 460.40, the dismissal of a count cannot be stayed when the People appeal the dismissal. Here the judge dismissed a count, the People appealed, the judge then stayed the dismissal, held a trial, defendant was convicted of the count, and the People’s appeal was dismissed as moot. Because the judge had no authority pursuant to CPL 460.40 to stay the dismissal and go to trial on the dismissed count, the conviction was vacated.

 

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BECAUSE THE ISSUE WAS NOT PRESERVED BY OBJECTION, THE MAJORITY DID NOT CONSIDER WHETHER COUNTY COURT MADE A PROPER INQUIRY OF A JUROR WHO, DURING DELIBERATIONS, FOR THE FIRST TIME, REVEALED SHE WAS A RAPE VICTIM; DEFENDANT WAS CHARGED WITH RAPE; THE DISSENTING JUDGE WOULD HAVE CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE AND ORDERED A NEW TRIAL (THIRD DEPT).

The Third Department refused to consider whether County Court properly handled an “outburst by a juror during deliberations” because the issue was not preserved by objection. The dissenting justice would have considered the issue in the interest of justice and ordered a new trial:

From the dissent:

The foreperson said it best — “how did you get this far if that’s the case? . . . you shouldn’t be here.” The foreperson said this to one of the jurors, who was in seat No. 6, after this juror revealed during deliberations that she was a victim of rape — one of the crimes for which defendant was being tried. Juror No. 6 had not disclosed this fact during voir dire or on the juror questionnaire. In any event, County Court proceeded to question each juror, including juror No. 6, to determine if any of them was grossly unqualified. Such inquiry, however, was not “probing and tactful” … and, consequently, the court failed to ensure that the finding of guilt was the product of a fair and impartial jury. * * *

In my view, County Court’s inquiry did not meet the probing and tactful standard. Based on the allegations of rape made against defendant, juror No. 6’s revelation of being a rape victim and the doubt expressed by the foreperson about juror No. 6’s impartiality, it was incumbent upon the court, at the very least, to ask juror No. 6 about being a rape victim. Indeed, the court intended on asking juror No. 6 about being a sexual assault victim but, for some reason that is not apparent in the record, it never did. Merely asking whether juror No. 6 was a crime victim did not address the emotionally charged situation that the foreperson brought to the court’s attention. The court’s inquiry was therefore flawed from the outset. People v Rivera, 2022 NY Slip Op 04050, Third Dept 6-23-22

Practice Point: Because the issue was not preserved for appeal by objection, the majority refused to consider whether County Court made a proper inquiry when a juror revealed during deliberations, for the first time, she was a rape victim. Defendant was charged with rape. The dissenting justice would have considered the issue in the interest of justice and ordered a new trial.

 

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THE MAJORITY REFUSED TO CONSIDER WHETHER COUNTY COURT PROPERLY DISCHARGED A JUROR WHO FAILED TO APPEAR BECAUSE THE ISSUE WAS NOT PRESERVED BY OBJECTION; TWO DISSENTERS WOULD HAVE CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE AND ORDERED A NEW TRIAL (THIRD DEPT).

The Third Department refused to consider whether the court properly discharged a juror because the issue was not preserved by objection. The two dissenting justices would have ordered a new trial in the interest of justice:

From the dissent:

If a juror is unable to continue serving due to an illness, “the court shall make a reasonably thorough inquiry concerning such illness . . . and shall attempt to ascertain when such juror will be appearing in court” (CPL 270.35 [2] [a]). * * *

… [O]n the day at issue and approximately 30 minutes after the scheduled start of the trial, County Court noted that juror No. 1 was not present. The court remarked, “She did leave sick yesterday,” and, after such remark, stated that it was necessary to replace juror No. 1 with an alternate juror. …

… [T]here was no reasonably thorough inquiry — let alone, any inquiry — as to juror No. 1’s absence. Although juror No. 1 was apparently ill on the day when she was selected for service, the court did not bother to learn if she continued to be ill. It seems that the court merely speculated that, because juror No. 1 was ill the day before, she continued to be ill and that was the reason why she did not show up at the scheduled time for the start of the trial. Such speculation, however, does not meet the standard of conducting a reasonably thorough inquiry. … [E]ven if it could be said that the court did make a reasonably thorough inquiry, the court still failed to ascertain when juror No. 1 would return to court. The record discloses that, prior to discharging juror No. 1, the court neither heard from nor reached out to her to see if she would not be making it for the trial or if she was en route to the courthouse … . People v Colter, 2022 NY Slip Op 04055, Third Dept 6-23-22

Practice Point: Here the issue whether County Court properly discharged a juror was not considered by the majority because the issue was not preserved by objection. The two dissenters argued the court did not conduct a proper inquiry to determine why the juror had not appeared and whether the juror would appear. The dissenters would have considered the issue in the interest of justice and ordered a new trial.

 

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