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WHERE A TRIAL JUDGE DEMANDS A WAIVER OF APPEAL, THE JUDGE SHOULD PLACE HIS OR HER REASONS ON THE RECORD SO THE DEMAND IS NOT SEEN AS A TOOL FOR AVOIDING APPELLATE REVIEW; THE JUDGE-DEMANDED WAIVER WAS NOT ENFORCED IN THIS CASE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, determined defendant’s waiver of appeal was not enforceable for two reasons: (1) the waiver was demanded by the judge, not the People; and (2) the waiver was demanded after the guilty plea and the sentence promise (therefore defendant did not receive a material benefit from the waiver). The court noted that a waiver demanded by a judge could be seen a tool for avoiding appellate review. Therefore, the Second Department held the judge should put his or her reasons for demanding a waiver on the record. Turning to the merits, the Second Department affirmed the conviction:

We do not foreclose the possibility that there may be circumstances where the trial court has a legitimate interest in conditioning its acceptance of a plea and determination of a sentence upon an appeal waiver that the prosecution has not requested. While the prosecution need not articulate any reason for including a demand for an appeal waiver in its settlement offer, where it is the court that makes the demand, the court should articulate on the record its reasons for doing so in order to dispel any concern that the court’s demand is motivated solely as a means of avoiding appellate review of its decisions. Here, the Supreme Court did not set forth any reason for demanding an appeal waiver, and none is apparent on the record. Accordingly, we will not enforce the defendant’s purported waiver of the right to appeal. People v Sutton, 2020 NY Slip Op 03400, Second Dept 6-17-20

 

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CONSECUTIVE PERIODS OF POSTRELEASE SUPERVISION VIOLATED THE PENAL LAW; ERROR DID NOT NEED TO BE PRESERVED (FOURTH DEPT).

The Fourth Department noted that consecutive periods of postrelease supervision violated the Penal Law and the issue did not need to be preserved:

County Court erred in imposing consecutive periods of postrelease supervision in violation of Penal Law § 70.45 (5) (c) … . Although defendant failed to preserve that contention for our review, the lack of preservation “is of no moment, inasmuch as we cannot allow an illegal sentence to stand” … . We therefore modify the judgment by directing that the periods of postrelease supervision imposed shall run concurrently. People v Hyde, 2020 NY Slip Op 03319, Fourth Dept 6-12-20

 

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RECKLESS ENDANGERMENT AND MENACING A POLICE OFFICER CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department reversed two of defendant’s convictions as against the weight of the evidence.  Defendant was charged with reckless endangerment first degree and menacing a police officer. It was alleged defendant fired a weapon during a foot chase. The two officers heard a gunshot but no bullet or casing was found:

… [T]he jury would have had to resort to sheer speculation to find that defendant displayed or fired a weapon, much less that he fired a weapon intentionally. The officers’ testimony that they “heard” a gunshot from some distance away does not prove beyond a reasonable doubt, for purposes of the menacing charge, that defendant visually displayed the weapon that discharged the shot. Nor does such testimony prove beyond a reasonable doubt, for purposes of the reckless endangerment charge, that the shot was fired toward the officers and thereby created a grave risk of death to them. Indeed, the second officer’s testimony that he “believed” that defendant had shot at the officers is speculative and is contradicted by his contemporaneous statement that the gun might have discharged accidentally. People v Thomas, 2020 NY Slip Op 03318, Fourth Dept 6-12-20

 

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ALTHOUGH THE ORDER ADDRESSING A MOTION TO SET ASIDE THE VERDICT WAS ISSUED AFTER JUDGMENT AND THEREFORE CANNOT BE SUBSUMED IN THE JUDGMENT, THE ORDER IS APPEALABLE; PRECEDENT TO THE CONTRARY OVERRULED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, overruling precedent, determined that an order issued after judgment, here an order on a motion to set aside the verdict, can be appealed:

… [W]e must consider whether a party may appeal directly from an order denying a CPLR 4404 motion when that order was entered after entry of a final judgment. In some of our previous cases, we have concluded that such an order is “subsumed in the judgment and the right to appeal directly therefrom terminated” (Paul Revere Life Ins. Co. v Campagna, 233 AD2d 954, 955 [4th Dept 1996] …). We now conclude that the rule set forth in Paul Revere Life Ins. Co. is inconsistent with the statutory framework and with Court of Appeals precedent, and should no longer be followed. Accordingly, we hold that an order otherwise appealable as of right (see CPLR 5701 [a]) entered after the entry of a final judgment is not subsumed in the judgment, but is independently appealable.

An appeal may be taken as of right from an order that, inter alia, “involves some part of the merits,” “affects a substantial right,” or “refuses a new trial” (CPLR 5701 [a] [2] [iii]-[v]). If, however, a court enters an “intermediate order” and subsequently enters a final judgment, the Court of Appeals has held that the entry of the judgment terminates the right to appeal from the order … . Although the right of appeal terminates, the order is not beyond review. There is a statutory remedy. An appeal from the final judgment “brings up for review,” inter alia, “any non-final judgment or order which necessarily affects the final judgment” or “any order denying a new trial” (CPLR 5501 [a] [1], [2]). Thus, CPLR 5501 (a) salvages the ability of aggrieved parties to seek review of the intermediate order on appeal.

On the other hand, orders entered after the entry of a final judgment cannot conceptually merge into the judgment. The rule in Aho [39 NY2d 241] applies only to an “intermediate order” … , which the Court of Appeals has defined as an order “made after the commencement of the action and before the entry of judgment” … . Consequently, inasmuch as the right of appeal from a post-judgment order remains in effect, we conclude that the appeal from the order here is properly before us. Knapp v Finger Lakes NY, Inc., 2020 NY Slip Op 03353, Fourth Dept 6-12-20

 

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NO APPEAL LIES FROM A NONFINAL ORDER, HERE ORDERS WHICH DID NOT RESOLVE THE AWARD OF ATTORNEY’S FEES; IN A SUCCESSFUL SHAREHOLDERS’ DERIVATIVE ACTION ATTORNEY’S FEES ARE PAID BY THE CORPORATION (FOURTH DEPT).

The Fourth Department determined no appeal lies from a nonfinal order and, in a successful shareholders’ derivative action, the corporation is liable for attorney’s fees. The facts of the case are too complex to fairly summarize here. Defendant limited liability company was formed to develop a residential subdivision. The action alleged breach of contract and breach of fiduciary duty and sought dissolution of the LLC:

… “[A]lthough all of the substantive issues between the parties were resolved, the order was facially nonfinal, since it left pending the assessment of attorneys’ fees—a matter that plainly required further judicial action of a nonministerial nature” … . Further, plaintiffs’ “request for attorneys’ fees was an integral part of each of the asserted causes of action rather than a separate cause of action of its own,” and therefore that issue cannot be implicitly severed from the other issues … . Thus, the order … does not constitute a ” final order’ ” within the meaning of CPLR 5501 (a) (1) and does not bring up for our review any prior non-final order … . * * *

… [W]e agree with defendant that the court erred in determining that plaintiff is entitled to attorneys’ fees and disbursements in his status as a derivative plaintiff acting on the LLC’s behalf and in awarding such fees and disbursements … . “The basis for an award of attorneys’ fees in a shareholders’ derivative suit is to reimburse the plaintiff for expenses incurred on the corporation’s behalf . . . . Those costs should be paid by the corporation, which has benefited from the plaintiff’s efforts and which would have borne the costs had it sued in its own right” … . Thus, plaintiff’s success as a derivative plaintiff is not an acceptable basis for an award of attorneys’ fees and disbursements against defendant individually. Howard v Pooler, 2020 NY Slip Op 03347, Fourth Dept 6-12-20

 

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AFTER REVERSAL BY THE COURT OF APPEALS, DEFENDANT’S SUPPRESSION MOTION WAS GRANTED AND HIS GUILTY PLEA WAS VACATED; EVEN THOUGH DEFENDANT’S SUPPRESSION MOTION DID NOT RELATE TO THE OFFENSE TO WHICH DEFENDANT PLED GUILTY, THE APPELLATE DIVISION SHOULD HAVE REACHED THE MERITS OF THE MOTION BECAUSE OF ITS POTENTIAL EFFECT ON THE DECISION TO PLEAD GUILTY TO ANOTHER OFFENSE IN FULL SATISFACTION OF ALL THE CHARGES (FOURTH DEPT).

The Fourth Department, after a reversal by the Court of Appeals, determined defendant’s motion to suppress evidence seized after a street stop should have been granted and vacated defendant’s guilty plea. Defendant was charged with two burglaries on different days. Defendant pled guilty to one of the burglaries in satisfaction of both. Defendant appealed the denial of the suppression motion related to the street stop. The Fourth Department did not reach the merits of the appeal because the suppression motion did not involve the offense to which defendant pled guilty. The Court of Appeals reversed, finding that the denial of the suppression motion was appealable because of its potential effect on the decision to plead guilty in satisfaction of both charges:

A majority of this Court concluded that ” the judgment of conviction on appeal here did not ensue from the denial of the motion to suppress [relating solely to count two] and the latter [wa]s, therefore, not reviewable’ pursuant to CPL 710.70 (2)” … . The Court of Appeals reversed, stating that “the Appellate Division may review an order denying a motion to suppress evidence where, as here, the contested evidence pertained to a count—contained in the same accusatory instrument as the count defendant pleaded guilty to—that was satisfied by the plea” … . The Court of Appeals remitted the matter to this Court to rule on defendant’s suppression contention.

Upon remittitur, we now agree with defendant that Supreme Court erred in refusing to suppress physical evidence seized as a result of his unlawful detention on October 3, 2014 … . We further agree with defendant that such error was not harmless under the circumstances (see id. at 1424). We therefore reverse the judgment, vacate the plea, grant that part of the omnibus motion seeking to suppress the physical evidence seized from defendant on October 3, 2014, and remit the matter to Supreme Court, Monroe County, for further proceedings on the indictment. People v Holz, 2020 NY Slip Op 03345, Fourth Dept 6-12-20

 

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ALTHOUGH REFORMATION OF THE CONTRACT MAY HAVE CONSTITUTED REVERSIBLE ERROR HAD A COURT DONE IT, THE REFORMATION WAS APPROPRIATE IN THE CONTEXT OF AN ARBITRATION OF THIS COMPLEX COMMERCIAL DISPUTE; THE ARBITRATION AWARD WAS PROPERLY CONFIRMED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined that, under the highly deferential standard of court-review of arbitration awards, the award here was properly confirmed, despite an error which might have required reversal if committed by a court. The underlying facts (the provisions of the contract) are too complex to fairly summarize here:

The arbitrator’s reason for inserting a $10 million deduction * * * [was] not in reliance on any of the provisions set forth in the [contract]. Among other arguments made to the arbitrator, petitioner requested that the relevant portion of the … agreement be reformed … . Although the arbitrator did not expressly so characterize his determination, reformation was, in substance, the permissible relief he granted (see Matter of SCM Corp. [Fisher Park Lane Co.], 40 NY2d 788, 792-793 [1976] [arbitrators have the power to fashion remedies, such as reformation, appropriate to the resolution of the dispute]). While a court’s grant of reformation based on this record might constitute reversible error, the arbitrator’s determination here passes muster, given the extremely limited scope of our review of an arbitration award (see American Intl Specialty Lines Ins. Co. v Allied Capital Corp., __ NY3d [*4]__, 2020 NY Slip Op 02529 [2020] [arbitrators routinely use their expertise to orchestrate expeditious resolutions to complex commercial legal disputes and courts are discouraged from becoming unnecessarily entangled in arbitrations]). … The result the arbitrator reached … is supportable as a reformation of the parties’ agreement, given the highly deferential standard of review accorded arbitration awards under CPLR article 75 … . Matter of Rose Castle Redevelopment II, LLC v Franklin Realty Corp., 2020 NY Slip Op 03293, First Dept 6-11-20

 

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EVEN THOUGH THE US SUPREME COURT CASE REQUIRING WARRANTS FOR CELL SITE LOCATION DATA WAS NOT DECIDED AT THE TIME OF TRIAL, PRESERVATION OF THAT ISSUE FOR APPEAL IS STILL NECESSARY; A DEFENDANT MAY BE INDICTED FOR BOTH DEPRAVED INDIFFERENCE AND INTENTIONAL MURDER; CONSECUTIVE SENTENCES FOR THE SHOOTINGS AND POSSESSION OF A WEAPON WERE APPROPRIATE (FIRST DEPT). ​

The First Department, affirming defendant’s murder, assault and weapon-possession convictions, and affirming the denial of defendant’s motion to vacate the convictions, determined: (1) the issue re: the warrantless procurement of cell site location data was not preserved, and preservation was necessary despite the fact that the US Supreme Court case requiring warrants was not decided at the time of trial; (2) the defendant was properly indicted, by different grand juries, for both depraved indifference and intentional murder; and (3) consecutive sentences for possession of a weapon and the shootings were appropriate:

At trial, defendant did not preserve any claim relating to cell site location information obtained without a warrant, and the motion court providently exercised its discretion under CPL 440.10(2)(b) when it rejected defendant’s attempt to raise this issue by way of a postconviction motion. Defendant asserts that it would have been futile for trial counsel to raise the issue because the Supreme Court of the United States had not yet decided Carpenter v United States (585 US __, 138 S Ct 2206 [2018]), a case that we assume, without deciding, applies here because defendant’s direct appeal was pending at the time that case was decided. We conclude that defendant should not be permitted to avoid the consequences of the lack of preservation. Although Carpenter had not yet been decided, and trial counsel may have reasonably declined to challenge the cell site information, defendant had the same opportunity to advocate for a change in the law as did the litigant who ultimately succeeded in doing so … . In the closely related context of preservation, the Court of Appeals has expressly rejected the argument that an “appellant should not be penalized for his failure to anticipate the shape of things to come” … . * * *

A grand jury’s indictment of defendant for depraved indifference murder, after a prior grand jury had indicted him for intentional murder, did not violate CPL 170.95(3). The second presentation did not require permission from the court, because the first indictment cannot be deemed a dismissal of the depraved indifference count in the absence of any indication that the first grand jury was aware of or considered that charge … . The rule that a person may not be convicted of both intentional and depraved indifference murder … applies to verdicts after trial, not indictments. These charges may be presented to a trial jury in the alternative (as occurred in this case, where defendant was acquitted of depraved murder but nevertheless claims a spillover effect). Furthermore, the People were not required to present both charges to the same grand jury … . People v Crum, 2020 NY Slip Op 03282, First Dept 6-11-20

 

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ACCOUNTING CAUSE OF ACTION IN THIS SHAREHOLDERS’ DERIVATIVE SUIT SHOULD NOT HAVE BEEN DISMISSED; ALTHOUGH SUA SPONTE ORDERS ARE NOT APPEALABLE, THE APPEAL WAS HEARD IN THE INTEREST OF JUSTICE; PROPER WAY TO HANDLE A SUA SPONTE ORDER IS TO MOVE TO VACATE AND THEN APPEAL (FIRST DEPT).

The First Department, reversing Supreme Court in this shareholders’ derivative action against a low-income Housing Development Fund Corporation (HDFC), determined: (1) although a sua sponte order is not appealable, the appeal of the dismissal of the cause of action for an accounting is heard in the interest of justice; (2) the proper way to handle a sua sponte order is to move to vacate it and then appeal; (3) there was no need to amend the complaint because the accounting cause of action included the right to damages for wrongdoing (here the alleged failure to account for the sale of an apartment for $90,000):

An order issued sua sponte is not appealable as of right (see CPLR 5701[a][2] …). Plaintiffs’ remedy is to move to vacate the court’s order, and, if the motion is denied, appeal from that order (CPLR 5701[a][3] …). …

… [W]e find that Supreme Court erred in dismissing the complaint because the cause of action for an equitable accounting was not moot. Supreme Court conflated the first cause of action for the inspection of the HDFC’s books and records with the second cause of action for an equitable accounting … . Defendants failed to demonstrate what happened to the $90,000 from the sale of Apartment 6A, and the funds do not appear in the HDFC’s financials. Defendants’ affidavits did not address this glaring deficiency.

… An equitable accounting involves a remedy “designed to require a person in possession of financial records to produce them, demonstrate how money was expended and return pilfered funds in his or her possession” … . Available relief includes a personal judgment against the wrongdoer … . Hall v Louis, 2020 NY Slip Op 03268, First Dept 6-11-20

 

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THE DEPRAVED-INDIFFERENCE ELEMENT OF THE CHARGED OFFENSES WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; ALTHOUGH DEFENDANT’S ATTEMPTS TO CARE FOR BURNS ON THE CHILD’S LEGS WERE GROSSLY INADEQUATE, THOSE MEASURES DID NOT SUPPORT A FINDING DEFENDANT DID NOT CARE AT ALL ABOUT THE CONDITION OF THE CHILD (SECOND DEPT).

The Second Department, reducing defendant’s assault and reckless endangerment convictions, over a dissent, determined the depraved-indifference element of the charges was not supported by the weight of the evidence. The defendant’s 20-month-old foster child had second and third degree burns on his legs. Mother consistently explained she heard screaming coming from the bathroom where she saw the child trying to get out of the tub and the child’s three-year-old sister standing outside the tub as the tub was filling up with hot water. The People tried to prove, through an expert (Yurt), that the child had been held in hot water. But there were inconsistencies in the expert’s testimony. Defendant explained that she was afraid to take the child to the hospital and instead tried to treat the burns after talking to a pharmacist and going on line:

The inconsistencies in Yurt’s [the People’s expert’s] testimony undermined the People’s already tenuous theory that the defendant affirmatively caused the burns. …

Accordingly, to establish the “depraved indifference” element of the subject offenses, we are left with the defendant’s failure to obtain proper medical care for the child. This case is thus squarely controlled by Lewie and Matos. As in those cases, while the evidence in this case shows that the defendant “cared much too little about [the] child’s safety, it cannot support a finding that she did not care at all” (People v Lewie, 17 NY3d at 359; see People v Matos, 19 NY3d at 476). Like the defendant in Matos, the defendant in the present case took measures, “albeit woefully inadequate” ones, to care for the child, by inquiring about proper burn care at a pharmacy, purchasing ointments and bandages, and keeping the burns covered. Those measures are commensurate with the measures taken by the defendant in Matos who reacted to a beating that caused her child severe internal bleeding and multiple broken bones by making a homemade splint for her son’s leg and giving him ibuprofen (see id. at 476). People v Verneus, 2020 NY Slip Op 03256, Second Dept 6-10-2o

 

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