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ALTHOUGH THE ISSUES WERE NOT RAISED ON APPEAL, THE APPELLATE COURT VACATED THE SENTENCES EITHER BECAUSE THE CONCURRENT SENTENCES WERE ILLEGAL OR BECAUSE THE GUILTY PLEAS WERE INDUCED BY THE PROMISE OF ILLEGAL CONCURRENT SENTENCES (FOURTH DEPT).

The Fourth Department, raising issues not raised in the appeals, determined the concurrent sentences imposed by the judge had to be vacated because the judge did not put the reasons for the concurrent sentences on the record. All the sentences were vacated because the guilty pleas were induced by a promise of illegal concurrent sentences:

… [D]efendant committed the crimes to which he pleaded guilty in appeal Nos. 2 and 3 while released on recognizance for the charge to which he pleaded guilty in appeal No. 1, and defendant also committed the crime to which he pleaded guilty in appeal No. 2 while released on recognizance for the charge to which he pleaded guilty in appeal No. 3. Thus, in the absence of a statement of the facts and circumstances warranting concurrent sentences set forth on the record, the court was required to direct that the felony sentences run consecutively (see § 70.25 [2-b] …). …

A court may, in the interest of justice, impose a concurrent sentence for a conviction of assault in the second degree under Penal Law § 120.05 (7), provided that the court sets forth in the record its reasons for imposing a concurrent sentence (see Penal Law § 70.25 [5] [c] …) … [T]he court imposed a concurrent sentence without setting forth its reason on the record.

… [B]ecause defendant’s guilty pleas in appeal Nos. 1 through 5 were all induced by the promise of illegal concurrent sentencing, we must also vacate the sentence imposed in appeal No. 4, and in each of the five appeals we remit the matter to County Court to afford defendant the opportunity to either withdraw his guilty plea or be resentenced in compliance with Penal Law § 70.25 (2-b) and (5) … . People v Horton, 2022 NY Slip Op 04501, Fourth Dept 7-8-22

Practice Point: Sentences for crimes committed when defendant has been released on his own recognizance can not be concurrent unless the judge puts the relevant facts and reasoning on the record. The same goes for assault second. Here the reasons for the concurrent sentences were not put on the record, rendering the concurrent sentences illegal. Because all the guilty pleas were induced by the promise of concurrent sentences, all the sentences were vacated. The “illegal concurrent sentences” issue had not been brought up on appeal.

 

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THE QUALIFIED DOMESTIC RELATION ORDER (QDRO) AS DESCRIBED IN THE STIPULATION OF SETTLEMENT INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE CANNOT BE MODIFIED BY THE COURT; NO APPEAL LIES OF RIGHT FROM A QDRO, AN APPLICATION FOR LEAVE TO APPEAL MUST BE MADE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the qualified domestic relations order (QDRO) should not have been modified by the court because the stipulation of settlement, which was incorporated but not merged into the judgment of divorce, controls. The Fourth Department noted that no appeal lies of right from a QRDO but it treated the notice of appeal as an application for leave to appeal and granted the application:

A stipulation of settlement that is incorporated but not merged into a judgment of divorce “is a contract subject to the principles of contract construction and interpretation” … . Where such an agreement is clear and unambiguous, the intent of the parties must be gleaned from the language used in the stipulation of settlement and not from extrinsic evidence … , and the agreement in that instance ” ‘must be enforced according to the plain meaning of its terms’ ” … . “A proper QDRO obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment” … . “An alternative result would undermine litigants’ freedom of contract by allowing QDROs to create new rights—or litigants to generate new claims—unexpressed in the settlement stipulation” … . Thus, “a court cannot issue a QDRO encompassing rights not provided in the underlying stipulation . . . , or one that is more expansive than the stipulation” … . Gay v Gay, 2022 NY Slip Op 04480, Fourth Dept 7-8-22

Practice Point: A qualified domestic relations order (QDRO) as described in a stipulation of settlement incorporated but not merged into the judgment of divorce cannot be modified by the court. No appeal lies of right from a QDRO, an application for permission to appeal must be made.

 

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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.