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THE MAJORITY HELD THE APPELLATE DIVISION PROPERLY REFUSED TO HEAR APPELLANT FATHER’S APPEAL IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING BECAUSE FATHER WAS IN DEFAULT (NO APPEAL LIES FROM A DEFAULT); THE DISSENT ARGUED FATHER WAS NOT IN DEFAULT BECAUSE HE APPEARED BY COUNSEL (CT APP).

The Court of Appeals, affirming the Appellate Division, over a strong dissent, determined the Appellate Division properly concluded it could not hear the appellant father’s appeal in this termination-of-parental-rights proceeding because he was in default (no appeal lies from a default judgment). The dissent argued father appeared by counsel and therefore was not in default:

Before this Court, appellant does not dispute the Appellate Division’s determination that his failure to appear constituted a default.

From the dissent:

The only reviewable issue before us is whether the Appellate Division properly dismissed appellant father’s appeal from a Family Court order terminating his parental rights on the ground that appellant defaulted. That decision was in error because appellant appeared through counsel during the fact-finding and dispositional hearings, as acknowledged by Family Court, and in accordance with the Family Court Act and the CPLR (see Family Ct Act § 165; CPLR 3215 [a]). Matter of Irelynn S., 2022 NY Slip Op 01869, Ct App 3-17-22

Practice Point: No appeal lies from a default judgment. The dissent argued: A party who appears by counsel, as appellant father did in these termination-of-parental-rights proceedings, is not in default.

 

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IN A RARE REVERSAL OF A BENCH TRIAL ON EVIDENTIARY GROUNDS, THE 1ST DEPT DETERMINED FOUR OUT-OF-COURT STATEMENTS ALLEGEDLY MADE BY THE VICTIM IN THIS SEXUAL-OFFENSE CASE SHOULD NOT HAVE BEEN ADMITTED UNDER THE “EXCITED UTTERANCE” OR “PROMPT OUTCRY” THEORIES; THE COURT NOTED THAT ONLY THE FACT OF THE COMPLAINT, NOT THE ACCOMPANYING DETAILS, ARE ADMISSIBLE AS A “PROMPT OUTCRY” (FIRST DEPT). ​

The First Department, reversing defendant’s conviction after a nonjury trial, determined four out-of-court statements made by the alleged victim in this sexual-offense case should not have been admitted a “excited utterances.” Although two of the statements were “prompt outcries,” under that theory only the fact of a complaint, not the details (as provided here) are admissible:

… [T]he trial court admitted four statements made by the alleged victim following the incident, reasoning that they were admissible both as excited utterances and prompt outcries. This was error. The alleged victim’s out-of-court statements did not qualify as excited utterances and should not have been admitted for their substance under that hearsay exception …  . Although two of the four statements were correctly admitted under the alternative theory that they constituted prompt outcries, under this exception, “only the fact of a complaint, not its accompanying details” is admissible … . It is clear from the record that the trial court considered all four hearsay statements for their substance, and thus, there can be no presumption that the court, as the finder of fact, considered only competent evidence … .. Given the People’s strong reliance on the hearsay statements to prove its case, and the court’s indication that it intended to review the written statement that was in evidence during deliberation, we cannot say that “the proof of the defendant’s guilt, without reference to the error, is overwhelming” and that the error was therefore harmless … . People v Gideon, 2022 NY Slip Op 01746, First Dept 3-15-22

​Practice Point: In this nonjury sexual-offense prosecution the court erred by admitting out-of-court statements by the alleged victim under the “prompt outcry” theory. Only the fact of the complaint is admissible, not the accompanying details.

 

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ALTHOUGH THE APPELLANT WAS IN JAPAN, THE 1ST DEPARTMENT REFUSED TO DISMISS THE APPEAL PURSUANT TO THE FUGITIVE DISENTITLEMENT DOCTRINE IN THIS FAMILY COURT CIVIL-CONTEMPT MATTER; APPELLANT HAD APPEARED VIRTUALLY IN COURT PROCEEDINGS AND STATED HE WOULD RETURN TO NEW YORK TO COMPLY WITH ANY COURT ORDER (FIRST DEPT).

The First Department refused to dismiss the appeal of this Family Court civil contempt matter pursuant to the fugitive disentitlement doctrine (which authorizes the dismissal of an appeal if the appellant has left the jurisdiction). Here father was in Japan:

Although the father is in Japan, we decline to dismiss the appeal pursuant to the fugitive disentitlement doctrine. There is no “nexus” connecting the father’s fugitive status and these proceedings … . The father has continued to appear virtually in court, communicate with his counsel, and consent to relief sought by the mother. He has complied with the terms of his probation and submitted an affidavit stating that he will return to New York to comply with any court order. Under these circumstances, we find that the father has not “flout[ed] the judicial process,” frustrated the operation of the courts, or prejudiced the mother’s rights by leaving the jurisdiction to warrant dismissal of the appeal … .Matter of Hilary C. v Michael K., 2022 NY Slip Op 01512, First Dept 3-10-22

Practice Point: If an appellant leaves the court’s jurisdiction (here father went to Japan), the appeal may be dismissed pursuant to the fugitive disentitlement doctrine. The doctrine was not applied in this Family Court civil contempt case because father participated in court proceedings virtually and stated he would return to New York to comply with any court order.

 

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THE CONSENT-TO-SEARCH PROBATION CONDITION WAS NOT INDIVIDUALLY TAILORED TO THE OFFENSE AND SHOULD NOT HAVE BEEN IMPOSED; IT WAS NOT NECESSARY TO PRESERVE THE ERROR FOR APPEAL AND APPEAL WAS NOT PROHIBITED BY THE DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was no justification for the “consent-to-search” probation condition. Defendant stole a cab driver’s cell phone and pled guilty to attempted assault. The court noted it was not necessary to preserve the error for appeal and appeal was not prohibited by the waiver of appeal:

The probation department [requested] that as a condition of probation, the defendant be required to consent to a search by a probation officer of his person, vehicle, and place of abode, and the seizure of any illegal drugs, drug paraphernalia, gun/firearm or other weapon, or other contraband found (Condition No. 28). At sentencing, the Supreme Court imposed the consent to search condition of probation. On appeal, the defendant argues that this condition of his probation was improperly imposed.

The defendant correctly argues, and the People do not dispute, that this issue was not required to be preserved for appellate review, and that appellate review is not precluded by his waiver of the right to appeal … .

… [T]he defendant was a first-time offender and was not armed with a weapon at the time he committed the offense. While the defendant told the probation department that he was under the influence of alcohol at the time of the offense, he was not assessed as being in need of alcohol or substance abuse treatment. Under the circumstances, the consent to search condition of probation was improperly imposed because it was not individually tailored in relation to the offense, and was not, therefore, reasonably related to the defendant’s rehabilitation, or necessary to ensure that the defendant will lead a law abiding life … . People v Dranchuk, 2022 NY Slip Op 01312, Second Dept 3-2-22

 

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REMARKS BY THE JUDGE AND DEFENDANT’S COUNSEL PREJUDICED THE JURY IN THIS MEDICAL MALPRACTICE CASE; ALTHOUGH NOT PRESERVED, THE ISSUE WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE; DEFENSE VERDICT SET ASIDE (SECOND DEPT).

The Second Department, reversing the defendants’ verdict in this medical malpractice action and considering the appeal in the interest of justice, determined the trial judge and a defendant’s attorney made comments which prejudiced the jury:

… [T]he Supreme Court’s repeated prejudicial comments and interjections prejudiced the plaintiff. For example, the court barred the plaintiff’s counsel from referring to the growth at issue on the plaintiff’s left foot as a tumor, ordered that the growth be referred to as a wart, and continued to refer to it as a wart through the trial. Thus, the court, in effect, determined a pivotal issue of fact that was properly for the jury to resolve … . In addition, the court opined multiple times before the jury that there was no proof that the plaintiff was misdiagnosed by the defendants, despite testimony by the plaintiff’s expert to the contrary which had already been elicited. Although the court later directed the jury to disregard its remarks, the instruction was not sufficient to cure the prejudice caused by its improvident comments and interjections … .

The comments of [defendant] Oami’s counsel also prejudiced the plaintiff. Oami’s counsel made multiple improper and inflammatory comments about the relationship between counsel for the plaintiff and the plaintiff’s expert pathologist during the cross examination of that expert and during his summation to the jury on behalf of Oami. Contrary to the Supreme Court’s determination, these remarks were so inflammatory and unduly prejudicial as to have deprived the plaintiff of a fair trial … . Valenti v Gadomski, 2022 NY Slip Op 01342, Second Dept 3-2-22

 

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THE BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION; THE APPEAL FROM AN ORDER WHICH WAS NOT THE PRODUCT OF A MOTION ON NOTICE MUST BE DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt which is too comprehensive and detailed to fairly summarize here. determined: (1) the cause of action for breach of implied covenant of good faith and fair dealing was duplicative of the breach of contract cause of action; and (2) an appeal from a supplemental order which was not the product of a motion on notice must be dismissed:

The implied covenant of good faith and fair dealing “embraces a pledge that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract” … , and is breached when a party acts in a manner that deprives the other party of the benefits of the contract (id.). Generally, a breach of the covenant of good faith and fair dealing is a breach of the contract itself … . Therefore, a separate cause of action for breach of the covenant cannot be maintained where, as here, “it is premised on the same conduct that underlies the breach of contract cause of action and is intrinsically tied to the damages allegedly resulting from a breach of the contract” … . Because a breach of the covenant of good faith and fair dealing is a breach of the contract itself, plaintiffs may press their theory that defendants acted in derogation of the covenant in conjunction with their cause of action for breach of the license agreements … . We note that to the extent defendants were entitled to exercise discretion in the manner in which they performed their obligations … , they were, under the covenant (and, by natural extension, under the license agreement itself) prohibited from acting arbitrarily, irrationally, or in bad faith … . …

Defendants’ appeal from the supplemental order is dismissed because that order was not the product of a motion on notice (see CPLR 2214); rather, the supplemental order was issued in response to an inquiry from counsel seeking clarity regarding the court’s decision and order determining the summary judgment motions (see CPLR 5701[a][2] …). Parlux Fragrances, LLC v S. Carter Enters., LLC, 2022 NY Slip Op 01250, First Dept 2-24-22

 

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DEFENDANTS NOT LIABLE FOR INJURY SUFFERED WHILE PLAINTIFF WAS DOING WHAT HE WAS HIRED TO DO–REPAIR AN ELEVATOR; ISSUE CONSIDERED EVEN THOUGH RAISED FOR THE FIRST TIME ON APPEAL; IN ADDITION, DEFENDANTS ENTITLED TO THE HOMEOWNER’S EXEMPTION FROM LIABILITY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants’ motion for summary judgment in this Labor Law 200 and common law negligence action should have been granted. Plaintiff was injured doing the work he was hired to do—repairing an elevator. The issue was considered even though it was first raised on appeal. In addition, defendants were entitled to the homeowner’s exemption from liability pursuant to Labor Law 240(1):

We find merit to the defendants’ contention—raised for the first time on appeal but fully briefed by both sides … —that the injured plaintiff cannot succeed in his causes of action alleging a violation of Labor Law § 200 and common-law negligence, as “[n]o responsibility rests upon an owner of real property to one hurt through a dangerous condition which he [or she] has undertaken to fix”… . Indeed, the evidence in the record conclusively establishes that the injury-producing accident was caused by an unidentified defect in the very elevator that the injured plaintiff’s employer had been hired to repair. Accordingly, the defendants were entitled to summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence.

… The Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). The homeowner’s exemption to liability under Labor Law § 240(1) is available to “owners of one and two-family dwellings who contract for but do not direct or control the work.” Here, the defendants, as owners of the single-family townhouse where the accident occurred, established, prima facie, that they did not direct or control the home improvement work being done by the injured plaintiff and his employer at the time of the subject accident … . Soto v Justin Hochberg 2014 Irrevocable Trust, 2022 NY Slip Op 01193, Second Dept 2-23-22

 

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ALLOWING THE PEOPLE’S INVESTIGATOR TO GO INTO THE JURY ROOM DURING DELIBERATIONS TO SHOW THE JURORS HOW TO OPERATE A DIGITAL RECORDER WAS A MODE OF PROCEEDINGS ERROR THAT REQUIRED REVERSAL, DESPITE THE DEFENDANT’S CONSENT TO THE PROCEDURE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined the People’s investigator should not have been allowed to go into the jury room during deliberations to show the jurors how to operate a digital recorder. Although the defendant consented to the procedure, the Third Department decided the error was a “mode of proceedings” error which did not require preservation:

Pursuant to CPL 310.10 (1), a deliberating jury must be “under the supervision of a court officer” or “an appropriate public servant” and, “[e]xcept when so authorized by the court or when performing administerial duties with respect to the jurors, such court officer[] or public servant[] . . . may not speak to or communicate with [the jurors] or permit any other person to do so” … . Certainly, the People’s investigator cannot be said to be an appropriate public servant to interact with the jury in the deliberation room. Also troubling is the lack of a record of what occurred while the investigator was in the deliberation room. Indeed, the “right to a trial by jury in criminal cases is ‘fundamental to the American scheme of justice’ and essential to a fair trial. At the heart of this right is the need to ensure that jury deliberations are conducted in secret, and not influenced or intruded upon by outside factors” … . Given that the procedure that occurred here, allowing a representative of the People to interfere in the jury’s secret deliberations, goes “to the essential validity of the process and [is] so fundamental that the entire trial is irreparably tainted”… , we must reverse and remit for a new trial.  People v Jones, 2022 NY Slip Op 01069, Third Dept 2-17-22

 

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DEFENDANT MADE GOOD FAITH EFFORTS TO COMPLY WITH THE TERMS OF HER PLEA AGREEMENT; SENTENCE REDUCED AND CONVICTION MODIFIED IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reducing defendant’s sentence and modifying her conviction in the interest of justice, determined defendant had made good faith efforts to complete the anger-management program that was part of her plea agreement:

… [D]efendant entered into a plea agreement whereby she would plead guilty to second-degree assault, third-degree assault and endangering the welfare of a child, and the case would be adjourned for one year to allow her to complete a 12-week anger management program. If defendant completed the program, complied with an order of protection and had no new arrests, the People would allow her to withdraw her guilty plea to second-degree assault, and she would be sentenced to conditional discharges on the two misdemeanor convictions. Despite defendant’s diligent, repeated efforts to complete an anger management program, legitimate issues such as her inability to arrange childcare for her two young children after her 75-year-old grandmother, who had been caring for the children while defendant attended the sessions, broke her hip, prevented her from attending all the sessions. She enrolled in the program three times, each time beginning from the start, but could not complete the 12 weeks. At the time of sentencing, she had found, enrolled in and almost completed a different program close to her home with a schedule that allowed her to work and pick up her children after school. Although she did not complete the anger management program, defendant satisfied the remaining terms of the plea agreement. Under these circumstances, in the interests of justice we accordingly reduce the conviction and modify the sentence … . People v Perez, 2022 NY Slip Op 01104, Second Dept 2-17-22

 

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THE JUDGE WAS REQUIRED TO DETERMINE WHETHER DEFENDANT IS AN “ELIGIBLE YOUTH,” AND, IF SO WHETHER DEFENDANT SHOULD BE ADJUDICATED A YOUTHFUL OFFENDER; THE JUDGE WAS NOT AUTHORIZED TO ACCEPT A GUILTY PLEA TO SECOND DEGREE MURDER FROM THE JUVENILE DEFENDANT; THE WAIVER OF APPEAL WAS INVALID (SECOND DEPT).

The Second Department determined: (1) because defendant pled guilty to “armed felonies,” the judge was required to determine on the record whether defendant was an “eligible youth” and, if so, whether he should be afforded youthful offender status; (2) the judge was not authorized to accept a guilty plea for second degree murder from the juvenile defendant; and (3) the waiver of appeal was invalid:

… Supreme Court was required to determine on the record whether the defendant was an “eligible youth” (CPL 720.10[2][a][ii]), by considering the presence or absence of the factors set forth in CPL 720.10(3), and, if so, whether he should be afforded youthful offender status … . …

… Supreme Court was not authorized to accept a plea of guilty to count 3 [second degree murder]. As a juvenile offender, the defendant cannot be held criminally responsible for felony murder where the underlying felony, attempted robbery, is a crime for which he cannot be held criminally responsible (see CPL 1.20[42][2]; Penal Law § 30.00[2]; People v Stowe, 15 AD3d 597, 598; Matter of Tracy C., 186 AD2d 250, 251; People v Smith, 152 AD2d 56, 61). Accordingly, … the defendant’s plea of guilty to murder in the second degree … must be set aside … .

… Supreme Court’s oral colloquy and written appeal waiver mischaracterized the nature of the appeal waiver as an absolute bar to the taking of a direct appeal and a forfeiture of the attendant right to counsel and poor person relief … . People v Shelton, 2022 NY Slip Op 01050, Second Dept 2-16-22

 

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