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CHANGED CIRCUMSTANCES BROUGHT TO THE APPELLATE COURT’S ATTENTION BY THE ATTORNEYS FOR THE CHILDREN RENDERED THE RECORD INSUFFICIENT FOR REVIEW OF THE CUSTODY RULING; MATTER REMITTED (SECOND DEPT).

The Second Department determined changed circumstances brought to the Second Department’s attention by the attorneys for children rendered the appellate record insufficient for review of Family Court’s custody ruling. The matter was remitted:

… [T]he Family Court determined that it was in the best interests of the children for the mother to have sole residential custody. However, the respective attorneys for the children, in their briefs submitted to this Court, have brought to this Court’s attention certain alleged new developments since the order under review was issued in June 2019. As the Court of Appeals has recognized, changed circumstances may have particular significance in child custody matters and may render the record on appeal insufficient to review whether a child custody determination is still in the best interests of the children … . Matter of Fitzsimmons v Fitzsimmons, 2022 NY Slip Op 02411, Second Dept 4-13-22

Practice Point: In a child custody case, changed circumstances may render the record on appeal insufficient. Here the attorneys for the children brought the changed circumstances to the attention of the appellate court in their briefs and the court remitted the matter to Family Court.

 

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PLAINTIFF SUED BOTH THE COUNTY AND THE SHERIFF FOR ALLEGED EXPOSURE TO CONTAMINATED WATER IN THE SHOWER AT THE JAIL; THE ACTION AGAINST THE COUNTY WAS NOT BROUGHT UNDER A VICARIOUS LIABILITY THEORY (THE COUNTY IS NOT VICARIOUSLY LIABLE FOR THE ACTS OR OMISSIONS OF THE SHERIFF); RATHER THE CAUSE OF ACTION ALLEGED THE COUNTY WAS NEGLIGENT IN ITS OWN RIGHT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, an inmate at the Orange County Correctional Facility (OCCF), stated a cause of action against the county, as well as the county sheriff. Plaintiff alleged he was exposed to contaminated shower water at the jail. The cause of action against the county was not based on a vicarious liability theory (the county is not vicariously liable for the acts or omissions of the sheriff’s office). Rather plaintiff stated a cause of action alleging the county was negligent in failing to ensure the safety of the water at the jail. That cause of action is distinct from the sheriff’s duty to keep inmates safe. The issue was properly raised for the first time on appeal:

… [T]he complaint did not solely seek to hold the County vicariously liable for the actions and omissions of the sheriff and his deputies. The complaint alleged that the County had a duty to maintain the OCCF, including its water supply, in a safe and proper manner, and that the County’s breach of that duty caused the plaintiff to sustain personal injuries. The County’s duty to provide and maintain the jail building is distinguishable from the sheriff’s duty to receive and safely keep inmates in the jail over which the sheriff has custody … . Contrary to the defendants’ contention, the plaintiff’s argument that the County is liable for its own negligence, as opposed to being vicariously liable for the negligence of the sheriff or his deputies, is not improperly raised for the first time on appeal. Aviles v County of Orange, 2022 NY Slip Op 02384, Second Dept 4-13-22​

Practice Point: The county is not liable for the acts or omissions of the county sheriff under a vicarious liability theory. However, here the allegation that the shower water at the jail was contaminated stated a cause of action against the county for its own negligence. Therefore the action against the county should not have been dismissed.

 

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IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, ALTHOUGH FAMILY COURT THREATENED TO FIND RESPONDENT IN DEFAULT WHEN HE DID NOT PROVIDE PROOF HE FAILED TO APPEAR BECAUSE HE WAS HOSPITALIZED, FAMILY COURT DID NOT ULTIMATELY GIVE RESPONDENT A “DEFAULT WARNING;” RESPONDENT AND HIS COUNSEL WERE PRESENT AT THE FACT-FINDING BUT WERE PRECLUDED BY THE COURT FROM PARTICIPATING; RESPONDENT HAS A RIGHT TO BE HEARD ON THE ABANDONMENT ISSUE; REVERSED AND REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, determined respondent father in this termination of parental rights proceeding was not in default and that he was entitled to present a defense. To explain his failure to appear, respondent said he was hospitalized but he did not provide any proof of hospitalization when the court requested it. The court then found respondent to be in default and precluded respondent and his counsel from participating in the termination hearing:

Petitioner and the attorney for the child argue that the appeal must be dismissed because the challenged order was entered upon respondent’s default. We disagree. In its written decision, Family Court stated that it had advised respondent’s counsel at the December 18, 2019 appearance that, if the requested medical documentation was not timely provided, it “would find [respondent] in default” and “the trial would be an [i]nquest.” Our review of the record, however, confirms that no such warning was given. Instead, the court cautioned that if respondent failed to comply, it would “proceed with the proceeding with regard to the termination of his parental rights.” This is not a default warning but notice that the hearing would go forward on January 15, 2020. However frustrating respondent’s noncompliance with the court’s reasonable directive to provide documentation of his hospitalization may have been, the key point here is that respondent and his counsel were in attendance at the fact-finding hearing. We fully appreciate that trial courts are vested with broad authority to maintain the integrity of their calendars. Under the circumstances presented, however, we conclude that Family Court abused its discretion in holding respondent to be in default and precluding any participation at the hearing … . Matter of Makayla NN. (Charles NN.), 2022 NY Slip Op 02165, Third Dept 3-31-22

​Practice Point: Here Family Court never gave a “default warning” to respondent father when he failed to provide proof he did not appear because he was hospitalized. Father, who was present at the fact-finding, should not have been found to be in default and precluded from participating in the termination of parental rights proceeding.

 

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PLAINTIFFS STATED A CAUSE OF ACTION FOR MEDICAL MALPRACTICE BY ALLEGING THE TREATMENT OF PLAINTIFF’S DECEDENT AGAINST THE WISHES OF DECEDENT AND DECEDENT’S HEALTH-CARE AGENTS PROLONGED DECEDENT’S PAIN AND SUFFERING; THE “WRONGFUL LIFE” LINE OF CASES DOES NOT APPLY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing Supreme Court, determined plaintiff stated a cause of action sounding in medical malpractice by alleging the treatment of plaintiff’s decedent against decedent’s wishes and the wishes of his health-care agents prolonged his pain and suffering. This action was distinguished from the “wrongful life” line of case which held that being born alive with disabilities does not constitute an injury in New York [therefore a medical malpractice lawsuit alleging the parents should have been advised to terminate the pregnancy does not state a cause of action]. Supreme Court had based its dismissal of the complaint on a Second Department case (Cronin) which followed the “wrongful life” line of reasoning. The First Department refused to follow the Second Department:

… [In] Cronin, it appears that plaintiff sought damages based on a claim “that the defendant wrongfully prolonged the decedent’s life by resuscitating him against the express instructions of the decedent and his family” (Cronin, 60 AD3d at 804). In contrast, here, plaintiff seeks damages for decedent’s pain and suffering, which the complaint alleges was the result of medical malpractice in that defendants breached the standard of care by administering treatments without consent and in direct contravention of decedent’s wishes expressed in his advance directives as reaffirmed by his health care agents … .Greenberg v Montefiore New Rochelle Hosp., 2022 NY Slip Op 02194, First Dept 3-31-22

Practice Point: A decision in one appellate-division department does not bind another department. Here the “wrongful life” line of cases did not preclude a medical malpractice action alleging the treatment of plaintiff’s decedent against decedent’s wishes and against the wishes of decedent’s health-care agents prolonged decedent’s pain and suffering.

 

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THE WIFE’S REQUEST FOR MAINTENANCE WAS REJECTED WITHOUT EXPLANATION AND THE HUSBAND’S FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE WHOLLY ADOPTED BY SUPREME COURT; THE THIRD DEPARTMENT AWARDED MAINTENANCE ON APPEAL (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the wife was entitled to maintenance in this divorce proceeding. The parties had been married for 44 years. The wife’s income was around $31,000 and the husband’s income was around $117,000. Both were retired. The Third Department noted that Supreme Court did not give any indication of its rationale for rejecting the wife’s application and adopted the husband’s findings of fact and conclusions of law:

“The amount and duration of a maintenance award are addressed to the sound discretion of the trial court, and will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered” … .. “The court need not articulate every factor it considers, but it must provide a reasoned analysis of the factors it ultimately relies upon in awarding or declining to award maintenance” … .

Supreme Court wholly adopted verbatim the husband’s proposed findings of fact and conclusions of law, without articulating the factors it considered or providing a reasoned analysis for its rulings on the proposed findings of fact and conclusions of law. “[F]indings of fact submitted pursuant to CPLR 4213 (a) cannot constitute the decision of the court [as] mandated by Domestic Relations Law § 236 (B) (5) (g)” … . Although Supreme Court failed to set forth its rationale for rejecting the wife’s request for maintenance, “because our authority is as broad as that of the Supreme Court, we need not remit this issue” … . Louie v Louie, 2022 NY Slip Op 02172, Third Dept 3-31-22

Practice Point: Here in this divorce proceeding the judge did not give any indication of the rationale for rejecting the wife’s request for maintenance and wholly adopted the husband’s findings of fact and conclusions of law. Findings of fact cannot constitute a court’s decision. Rather than remitting the matter, the Third Department awarded maintenance.

 

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IN THIS SEX-OFFENSE CASE, THE SENTENCING JUDGE VIOLATED THE CRIMINAL PROCEDURE LAW BY REFUSING TO DISCLOSE THE VICTIM IMPACT STATEMENT TO THE DEFENDANT WITHOUT PLACING THE REASONS FOR NONDISCLOSURE ON THE RECORD; THE ISSUE SURVIVED THE WAIVER OF APPEAL (THIRD DEPT).

The Third Department, vacating defendant’s sentence and remitting for resentencing before a different judge, determined the sentencing judge who reviewed the victim impact statement in this sexual-offense case, and who granted the victim’s request to keep the victim impact statement confidential, violated CPL 390.50, which requires the judge to state the reasons, on the record, for not disclosing a victim impact statement to the defendant. The issue survived defendant’s waiver of appeal:

… [W]e find that defendant’s CPL 390.50 (2) (a) argument must survive the waiver of appeal as the Legislature has, without qualification or restriction, expressly mandated that “[t]he action of the court excepting information from disclosure shall be subject to appellate review” (CPL 390.50 [2] [a]), and courts “may not create a limitation that the Legislature did not enact” … . …

… [T]he record before us does not reflect any ruling by County Court with respect to the victim’s request to except her statement from disclosure. We therefore must conclude that the court failed to set forth “the reasons for its action” on the record, in violation of CPL 390.50 (2) (a) … . The record also does not reflect that any consideration was given to redacting the victim’s statement, leaving defendant wholly “unable to verify the accuracy of the information [therein] or meaningfully respond to it,” in further contravention of the statute … . What is clear, however, is that defendant never had the opportunity to review the victim’s statement and that County Court heavily relied upon it in fashioning its sentence. People v Ortiz, 2022 NY Slip Op 02041, Third Dept 3-24-22

Practice Point: If a sentencing judge wishes to withhold a victim impact statement from the defendant, the reasons for nondisclosure must be placed on the record (CPL 390.50). This issue survives a waiver of appeal.

 

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DEFENDANT WAS DEPRIVED OF HIS RIGHT TO CONFRONT A WITNESS AGAINST HIM AND WAS PENALIZED FOR REJECTING THE JUDGE’S PLEA OFFER AND GOING TO TRIAL; THE ISSUES WERE NOT PRESERVED BUT WERE CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, vacating one conviction and reducing the sentence for another, exercising its interest of justice jurisdiction over the unpreserved errors, determined defendant had been deprived of his right to confront a witness against him and the judge imposed a harsher sentence because defendant exercised his right to a trial:

… [T]he defendant was not afforded the opportunity to cross-examine a DMV employee who was directly involved in sending out the suspension notices or who had personal familiarity with the mailing practices of the DMV’s central mail room or with the defendant’s driving record … . Thus, the testimony of the DMV employee was improperly admitted in order to establish an essential element of the crime of aggravated unlicensed operation of a motor vehicle in the third degree in violation of the defendant’s right of confrontation … . …

… [P]rior to trial, the Supreme Court made its own plea offer to the defendant of an aggregate term of 1½ years of imprisonment to be followed by a period of 2 years of postrelease supervision in full satisfaction of the 16-count indictment … .The court … stated to the defendant: “You should understand the way I operate is as follows: Before trial with me you get mercy; after trial you get justice” … . The defendant declined the plea offer and proceeded to trial, after which he was acquitted of the top counts of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. The court then sentenced the defendant on the conviction of criminal possession of a controlled substance in the fourth degree to a term of 5 years of imprisonment to be followed by a period of postrelease supervision of 2 years. People v Ellerbee, 2022 NY Slip Op 02016, Second Dept 3-23-22

Practice Point: Here the DMV employee who had personal knowledge of the mailing of the license suspension notice to defendant and the defendant’s driving record apparently was not called as a witness. Therefore defendant was deprived of his right to confront the witness about an essential element of the offense. In addition, the judge imposed a much harsher sentence than that offered as part of a plea bargain. The judge thereby penalized the defendant because he chose to go the trial. Both of these errors were not preserved for appeal but were considered in the interest of justice.

 

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DEFENDANT, AT THE TIME OF THE PLEA, AGREED TO A SENTENCE OF 20 DAYS OF COMMUNITY SERVICE; AT SENTENCING, AFTER DEFENDANT HAD COMPLETED THE COMMUNITY SERVICE, THE PROSECUTOR AND DEFENSE COUNSEL ACKNOWLEDGED THAT THE BARGAINED-FOR SENTENCE WAS A ONE-YEAR CONDITIONAL DISCHARGE; ON APPEAL DEFENDANT ARGUED HE NEVER AGREED TO THE CONDITIONAL DISCHARGE AND HIS GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; THE MAJORITY HELD THE ISSUE WAS NOT PRESERVED FOR APPEAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DeFiore, over an extensive three-judge dissent, determined defendant’s argument that his plea was invalid because he was not informed that a one-year conditional discharge (CD) would be imposed, was not preserved for appeal. Defendant argued only the community-service sentence was agreed to at the time of the plea and the subsequent imposition of the conditional discharge rendered the plea involuntary:

Defendant challenges the voluntariness of his guilty plea, asserting that the court in its plea colloquy failed to advise him that the 20 days of community service to be imposed would be a condition of a sentence of a one-year conditional discharge. At the outset of the sentencing proceeding, the defense counsel and prosecutor affirmatively acknowledged to the court that the bargained-for sentence to be imposed was a conditional discharge. Prior to imposition of that sentence, defendant who had the practical ability to do so, failed to protest or otherwise seek to withdraw his guilty plea. As a result, defendant’s claim that the court’s imposition of an alleged new sentence rendered his guilty plea involuntary is unpreserved for our review. * * *

From the dissent:

Defendant … pleaded guilty to a reduced charge in exchange for a noncarceral sentence of 20 days of community service, along with a mandatory surcharge and temporary suspension of his driver’s license. When defendant appeared after completing his community service and without further criminal incident, the sentencing should have been in accord with the prosecutor and defendant’s agreement. Instead, the court imposed additional year-long conditions that were not agreed to and never mentioned during the plea colloquy or prior to sentencing. As a consequence, defendant’s plea is invalid … . People v Bush, 2022 NY Slip Op 01956, Ct App 3-22-22

Practice Point: Here defense counsel, at the outset of sentencing, acknowledged that the bargained-for sentence was a one-year conditional discharge. On appeal, the defendant argued that, at the time of the plea, he agreed only to a sentence of 20 days of community service, rendering his guilty plea involuntary. The majority held the issue was not preserved for appeal because defendant was alerted to the conditional-discharge sentence at the time of sentencing and did not move to withdraw his plea. The three-judge dissent agreed with defendant’s argument that his plea was involuntary.

 

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THE JUDGE’S FAILURE TO PRONOUNCE THE DEFINITE TERM COMPONENT OF DEFENDANT’S SENTENCE REQUIRED VACATION OF THE SENTENCE AND REMITTAL FOR RESENTENCING; THE ISSUE SURVIVES A WAIVER OF APPEAL (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence and remitting for resentencing, determined the definite term component of the sentence was not pronounced by the court:

CPL 380.20 provides that a court “must pronounce sentence in every case where a conviction is entered.” That statutory requirement is “unyielding” … . A violation of CPL 380.20 “may be addressed on direct appeal notwithstanding [any] valid waiver of the right to appeal or the defendant’s failure to preserve the issue for appellate review” … . “When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme” … .

Here, although the certificate of conviction states that defendant was sentenced to a split sentence of a definite term of time served in jail and five years of probation, which is consistent with the sentencing promise made during the plea proceeding, the court failed to orally pronounce during the sentencing proceeding the definite term component of defendant’s sentence as required by CPL 380.20 … . People v Adams, 2022 NY Slip Op 01921, Fourth Dept 3-18-22

Practice Point: Every component of a sentence must be “pronounced” by the judge in open court or the sentence will be vacated.

 

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THE CRITERIA FOR IMPOSING THE MAXIMUM RESTITUTION SURCHARGE OF 10% WERE NOT MET (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, determined the criteria for imposing the maximum restitution surcharge of 10% were not met:

… [T]he judgment … is … modified as a matter of discretion in the interest of justice by reducing the surcharge to 5% of the amount of restitution … . * * *

… [T]he court erred in imposing the 10% surcharge because there was no ” ‘filing of an affidavit of the official or organization designated pursuant to [CPL 420.10 (8)] demonstrating that the actual cost of the collection and administration of restitution . . . in [this] particular case exceeds five percent of the entire amount of the payment or the amount actually collected’ ” … . People v Webber, 2022 NY Slip Op 01904, Fourth Dept 3-18-22

Practice Point: Before the maximum restitution surcharge of 10% can be imposed, an affidavit must be filed demonstrating the actual cost of collection.