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ALTHOUGH COUNTY COURT DID NOT ABUSE ITS DISCRETION, THE APPELLATE COURT EXERCISED ITS INTEREST OF JUSTICE JURISDICTION TO ADJUDICATE DEFENDANT A YOUTHFUL OFFENDER (FOURTH DEPT).

The Fourth Department, exercising its own interest of justice authority, determined defendant should be adjudicated a youthful offender, noting that County Court did not abuse its discretion:

… [D]efendant was 17 years old at the time of the crimes and had no prior criminal record, history of violence, or history of sex offending. Moreover, defendant has substantial cognitive limitations, learning disabilities, and other mental health issues, and he has accepted responsibility for his actions and expressed genuine remorse. Both the Probation Department and the reviewing psychologist recommended youthful offender treatment, and the record suggests that defendant might have the capacity for a productive and law-abiding future. The only factor weighing against affording defendant youthful offender treatment is the seriousness of the crimes.

On balance, although County Court did not abuse its discretion in denying defendant youthful offender status, we will exercise our discretion in the interest of justice to reverse the judgment, vacate the conviction, and adjudicate defendant a youthful offender … . People v Nicholas G., 2020 NY Slip Op 01828, Fourth Dept 3-13-20

 

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ONCE A COURT SENTENCES A DEFENDANT TO SHOCK INCARCERATION, THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DOES NOT HAVE THE AUTHORITY TO DETERMINE THE DEFENDANT IS NOT ELIGIBLE; APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department, in full-fledged opinion by Justice Reynolds Fitzgerald, determined the Department of Corrections and Community Supervision (DOCCS) did not have the authority to find the peititioner was not eligible for the shock incarceration based upon his drug-related prison disciplinary history. Although the appeal was moot because petitioner had completed the program, the appeal was heard as an exception to the mootness doctrine because the scenario is likely to recur:

Once an inmate has been judicially ordered into the program, DOCCS’ participation under Penal Law § 60.04 (7) is expressly limited to its administration of the program, i.e., the completion, discipline and removal of an inmate from the program. If the Legislature intended DOCCS to have administrative discretion as to the eligibility criteria, it could have said so. It is a canon of statutory interpretation that a court cannot by implication supply in a statute a provision that it is reasonable to suppose the Legislature intended to omit (see McKinney’s Cons Laws of NY, Statutes § 74). The doctrine of expressio unius est exclusio alterius applies. The specification that DOCCS shall oversee completion, discipline and removal from the program implies in the strongest sense that the omission of DOCCS’ administrative eligibility regulation was intentional and not inadvertent … . Matter of Matzell v Annucci, 2020 NY Slip Op 01425. Third Dept 2-27-20

 

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THE WAIVER OF APPEAL WAS NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY MADE (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was not knowingly, voluntarily and intelligently made. Executing a written waiver does not fix a deficient colloquy:

A defendant should … ” receive an explanation of the nature of the right to appeal, which essentially advises that this right entails the opportunity to argue, before a higher court, any issues pertaining to the defendant’s conviction and sentence and to have that higher court decide whether the conviction or sentence should be set aside based upon any of those issues . . . [and] that appellate counsel will be appointed in the event that he or she were indigent”‘ … . … [T]he Criminal Jury Instructions & Model Colloquies, available online through the New York State Unified Court System’s website, include a model colloquy for the waiver of the right to appeal … . While the use of the model colloquy is not mandatory, its use may nevertheless “substantially reduce the difficulties” … , provided that the trial judges retain and use flexibility to undertake individualized inquiries as appropriate.

Here, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The County Court’s terse colloquy during the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal and the consequences of waiving that right  … . Although the defendant executed a written appeal waiver form, a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal … . Moreover, the defendant was not informed of the maximum sentence that could be imposed if he failed to comply with the conditions of his plea agreement … . Thus, the purported appeal waiver does not preclude appellate review of the defendant’s contention that the enhanced sentence was excessive. People v Slade, 2020 NY Slip Op 01366, Second Dept 2-26-20

 

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ALTHOUGH CONSENT ORDERS ARE GENERALLY NOT APPEALABLE, HERE THERE WAS A QUESTION WHETHER MOTHER WAS ABLE TO CONSENT IN THIS CUSTODY PROCEEDING; THE ATTORNEY FOR THE CHILD CANNOT VETO THE CONSENT OF THE PARTIES (THIRD DEPT).

The Third Department, reversing Family Court, determined the consent custody order, involving mother, aunt and great-aunt, may have been invalid because mother may have been unable to consent due to some unspecified disability, The Third Department noted that consent orders are generally not appealable, but here there was a question about the validity of the consent. The Third Department also noted that the attorney for the child (AFC), who disagreed with the consent order, does not have the power to veto a the consent of the parties:

We must first note that, as a general rule, no appeal lies from an order entered on consent … . Further, although Family Court cannot relegate the AFC to a meaningless role, the AFC cannot veto a proposed settlement reached by the parties, particularly after the AFC, as here, was given a full and fair opportunity to list objections to the proposed arrangement on the record … .

Here, however, we find substantial cause to question the validity of the mother’s consent to Family Court’s order. In the course of the appearances, the parties all appeared to acknowledge that the mother lacks the ability to care for the child on her own due to some disability, although the mother’s attorney objected to such a characterization in the absence of a legal determination. The AFC expressed concern about the effect of this disability on the mother’s “ability to . . . consent to anything.” Further, Family Court stated that “[the mother is] not in a position to make decisions.” In our view, this statement directly and expressly calls into question the mother’s ability to consent to the modification order … . In this context, the troubling allegations of inappropriate sexual contact raised by the AFC are particularly serious and significant. Our limited record thus does not demonstrate that the mother’s consent to the order was valid and, if not, that the court had “sufficient information to undertake a comprehensive independent review of the child’s best interests” … .  Accordingly, in these highly unusual circumstances, we remit for a hearing and further development of the record on the issue of the mother’s ability to consent, and, if necessary, as to whether the custody proposal meets the requisite standard of promoting the best interests of the child. Matter of Erica X. v Lisa X., 2020 NY Slip Op 01224, Third Dept 2-20-20

 

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PETITION ALLEGED MOTHER FAILED TO GIVE ADHD MEDICATION TO THE CHILDREN; THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING; BECAUSE FAMILY COURT ADDRESSED THE MERITS OF THE MOTION TO REARGUE THE MOTION WILL BE DEEMED TO HAVE BEEN GRANTED RENDERING THE ORDER APPEALABLE AS OF RIGHT (THIRD DEPT).

The Third Department, reversing Family Court, determined the neglect proceeding should not have been dismissed without a hearing. The petition alleged mother was not providing ADHD medication to the children and the children were unable to focus in school as a result. The Third Department noted that, although the denial of a motion to reargue is not appealable, here Family Court addressed the merits of the motion to reargue and will be deemed to have granted the motion:

Although, generally, no appeal lies from an order denying a motion to reargue, where “the court actually addresses the merits of the moving party’s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied” … . Considering that Family Court scheduled and heard oral argument on the motion to reargue and, thereafter, issued a decision addressing the merits, we deem the court to have granted reargument, such that the December 2018 order adhering to the October 2018 order is appealable as of right … . …

“A parent’s unwillingness to follow a recommended course of psychiatric therapy and medication, resulting in the impairment of a child’s emotional health[,] may support a finding of neglect. However, what constitutes adequate medical care cannot be judged in a vacuum. The critical factor in this determination is whether the parent[ has] provided an acceptable course of medical treatment for [his or her] child in light of all the surrounding circumstances” … . Here, the petition and corresponding affidavit stated, among other things, that respondent failed to properly administer prescribed ADHD medication to the two oldest children and failed to bring them to scheduled doctor appointments, and that those children were struggling in school and were unable to focus because they were not receiving the proper dosage of medication. The petition states that these allegations are supported, in part, by information received from the children and their school. Petitioner further alleged its concern that respondent was either taking the children’s medication herself or selling it, along with the reasons for such concern. * * *

Despite the lack of allegations in the petition directly concerning the youngest child, the petition’s allegations could support a finding of derivative neglect of that child. Matter of Aydden OO. (Joni PP.), 2020 NY Slip Op 01232, Third Dept 2-20-20

 

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PROOF OF THE VALUE OF THE STOLEN ITEMS WAS INSUFFICIENT; GRAND LARCENY 3RD DEGREE CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department determined the grand larceny third degree charged was against the weight of the evidence because the value of the stolen items was not proven:

The People were required to establish that the market value of the stolen items at the time of the crime exceeded $3,000 (see Penal Law § 155.20[1]). Here, the stolen property consisted of two handguns, several items of jewelry, and a computer tablet. The complainant testified that (1) the purchase price of the .40 caliber Smith & Wesson automatic handgun was $800 and that he purchased it “[a]pproximately four years” before the burglary; (2) the purchase price of the .380 Ruger automatic handgun was $600 and that he purchased it “[t]wo years” before the burglary; and (3) he cleaned both guns regularly, and they were both operable. The People’s ballistics expert testified that the retail value of each firearm was “anywhere from $500 to $1,000.”

However, the only evidence of the value of the remaining stolen items was the complainant’s testimony regarding the purchase price of some of those items, and he did not testify as to when he purchased those items, their market value, or the cost to replace them. Although a “victim is competent to supply evidence of original cost” … , “evidence of the original purchase price, without more, will not satisfy the People’s burden” … . On this record, we cannot conclude that the fact-finder could “reasonably infer, rather than merely speculate” that the value of all of the stolen goods exceeded the statutory threshold of $3,000 … . Accordingly, we find that the evidence was insufficient to establish that the value of the property taken exceeded $3,000 … . People v Rivera, 2020 NY Slip Op 01192, Second Dept 2-19-20

 

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DEFENSE COUNSEL INEFFECTIVE FOR CONCEDING DEFENDANT SUFFERS FROM A DANGEROUS MENTAL DISORDER; COUNTY COURT SHOULD HAVE HELD THE MANDATORY STATUTORY HEARING; APPEAL IS NOT ACADEMIC BECAUSE OF LASTING CONSEQUENCES OF THE ‘DANGEROUS MENTAL DISORDER’ FINDING (SECOND DEPT).

The Second Department, reversing County Court, determined defendant did not receive effective assistance of counsel because the attorney conceded defendant suffered from a dangerous mental disorder. County Court should have held the mandatory statutory hearing. The appeal is not academic because of the lasting effect of the finding defendant suffers from a dangerous mental disorder:

Although the commitment order has expired by its own terms, the appeal is not academic because the County Court’s determination that the defendant has a dangerous mental disorder has lasting consequences that will affect all future proceedings regarding his commitment and release … .

The initial hearing under CPL 330.20(6) is a critical stage of the proceedings during which the defendant is entitled to the effective assistance of counsel … . Here, there was simply no legitimate strategy that could have warranted defense counsel’s concession that the defendant suffered from a dangerous mental disorder, implicitly consenting to the defendant’s confinement in a secure facility … . As defense counsel failed to provide meaningful representation, the defendant was deprived of the effective assistance of counsel … .

Neither the defendant’s nor defense counsel’s concession to a finding of dangerous mental disorder can relieve the County Court from the obligation to provide the initial statutory hearing, which is mandatory (see CPL 330.20[6] … ). People v Juan R., 2020 NY Slip Op 01190, Second Dept 2-19-20

 

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‘ANDERS’ BRIEF DEFICIENT; NEW COUNSEL ASSIGNED FOR THE APPEAL (SECOND DEPT).

The Second Department determined the “Anders” appellate brief submitted by counsel was deficient and assigned new counsel for the appeal:

The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738) is deficient because it fails to contain an adequate statement of facts and fails to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal … . The statement of facts does not review, in any detail, the Supreme Court’s advisements to the appellant regarding the rights he was waiving, the inquiries made of the appellant to ensure that the admission was knowingly and voluntarily entered, or the appellant’s responses to any of those advisements and inquiries … . Since the brief does not demonstrate that assigned counsel fulfilled his obligations under Anders v California, we must assign new counsel to represent the appellant … . People v Morales, 2020 NY Slip Op 01188, Second Dept 2-19-20

Similar issues and result in People v Santos, 2020 NY Slip Op 01193, Second Dept 2-19-20

 

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SCHOOL-GROUNDS-PROXIMITY-RESIDENCE PROHIBITION APPLIED TO PETITIONER, A LEVEL THREE SEX OFFENDER, EVEN THOUGH THE OFFENSE FOR WHICH HE WAS BEING PAROLED WAS BURGLARY; SECOND DEPARTMENT DISAGREED WITH THE RESOLUTION OF THIS ISSUE BY THE THIRD AND FOURTH DEPARTMENTS; APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court and disagreeing with the Third and Fourth Departments, determined Executive Law 259-c (14), which prohibits sex offenders from entering school grounds, applied to petitioner in this habeas corpus proceeding. Petitioner had been designated a level three sex offender and was subsequently arrested and incarcerated for burglary. He was not released on parole for the burglary conviction when his sentence was complete because housing which complied with the school-grounds condition could not be found. Although the habeas corpus petition was moot because defendant had been released at the time of the appeal, the exception to the mootness doctrine allowed appellate review:

Executive Law § 259-c(14) provides, in relevant part, that “where a person serving a sentence for an offense defined in [Penal Law articles 130, 135, or 263, or Penal Law §§ 255.25, 255.26, or 255.27] and the victim of such offense was under the age of [18] at the time of such offense or such person has been designated a level three sex offender pursuant to [Correction Law § 168-l(6)], is released on parole or conditionally released pursuant to [Executive Law § 259-c(1) or (2)], the [Board of Parole] shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds, as that term is defined in [Penal Law § 220.00(14)], . . . while one or more of such persons under the age of [18] are present.”

As a result of its inartful wording and use of the term “such person,” Executive Law § 259-c(14) has been interpreted in opposing fashion by the Appellate Division, Third Department (see People ex rel. Negron v Superintendent Woodbourne Corr. Facility, 170 AD3d 12) and the Appellate Division, Fourth Department (see People ex rel. Garcia v Annucci, 167 AD3d 199). Inasmuch as the statute is amenable to competing interpretations, we agree with the appellants that the language of the statute is ambiguous and should be interpreted with reference to its legislative history and the purpose of the enactment of the 2005 amendment … . The legislative history clearly supports an interpretation that imposes the SARA [Sexual Assault Reform Act]-residency requirement based on either an offender’s conviction of a specifically enumerated offense against an underage victim or the offender’s status as a level three sex offender … . People ex rel. Rosario v Superintendent, Fishkill Corr. Facility, 2020 NY Slip Op 01178, Second Dept 2-19-20

 

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THE APPEAL OF THE DENIAL OF PETITIONER’S REQUEST FOR AN ADJOURNMENT TO OBTAIN COUNSEL WAS NOT MOOT, DESPITE THE FACT THE TRIAL WAS HELD AND COMPLETED IN PETITIONER’S ABSENCE; THE ADJOURNMENT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, reversing Surrogate’s Court, determined petitioner’s motion for an adjournment to obtain new counsel should have been granted and the appeal of the denial of an adjournment was not moot. The matter was before Surrogate’s Court for an accounting in the estate of Oleg Cassini, who died in 2006. At the time of the request for an adjournment three attorneys had withdrawn from the case. The trial went ahead without the presence of petitioner, Oleg Cassini’s wife Marrianne, and without counsel for petitioner:

An appeal is not moot “[w]here the case presents a live controversy and enduring consequences potentially flow from the order appealed from” … . On the other hand, “[a]n appeal is moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment'” … . Here, enduring consequences flow from the order appealed from since, absent a reversal of the order appealed from, the Surrogate’s Court’s determination after a trial in which Marianne did not participate will bind the parties. * * *

The Surrogate was rightly concerned about the lengthy history of delay in this case, just as we are. However, there was no evident urgency that required the trial to start on July 25, 2016, as opposed to 60 days later, and any prejudice to the objectants could have been readily addressed by appropriate orders dealing with the administration of the estate and its assets. In the overall context of this long-running litigation, an adjournment of 60 days to allow Marianne’s prospective counsel, McKay, to prepare for the trial should have been granted. Indeed, the failure [*6]to grant it has resulted in additional delay and expense in the conclusion of this estate. Given our preference that matters be determined on their merits, and the absence of any indication on this record that Marianne’s motion for an adjournment was made solely for the purpose of delay, the Surrogate’s Court should not have rejected the request out of hand. Matter of Cassini, 2020 NY Slip Op 01056, Second Dept 2-13-20

 

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