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SEX TRAFFICKING CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, reversing the sex trafficking conviction, determined there was insufficient evidence defendant used force or participated in a scheme to compel the alleged victim to engage in prostitution by threat of physical harm. The sex trafficking conviction was deemed to be against the weight of the evidence:

The evidence showed that the alleged victim, her mother, and a third woman, sought to earn more money than they were earning in Florida, that they voluntarily traveled with defendant to New York to earn money as prostitutes, and that defendant left them alone at times in Florida and New York. There was no evidence presented at trial that defendant ever threatened to harm the alleged victim if she failed to begin or continue working as a prostitute. A detective described a call he overheard between defendant and the alleged victim, after she was apprehended, in which defendant was angry because he believed that she did not get money from a client. However, this does not suffice to prove any use of force or a “scheme” to compel her to work as a prostitute. Similarly, although the third woman in the group that came with defendant from Florida testified that she was a “little intimidated” by an argument over money between defendant and another man, this does not establish the required threat of harm, even assuming the alleged victim also saw and heard the argument. People v Hayes, 2020 NY Slip Op 00832, First Dept 2-4-20

 

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THE CHILDREN WISHED TO REMAIN WITH MOTHER BUT CUSTODY WAS AWARDED TO FATHER; THE ATTORNEY FOR THE CHILD AGREED FATHER SHOULD HAVE CUSTODY; MOTHER REQUESTED A LINCOLN HEARING WHICH WAS DENIED; THE DISSENT ARGUED A LINCOLN HEARING SHOULD HAVE BEEN HELD (FOURTH DEPT).

The Fourth Department determined custody of the children was properly granted to father, against the children’s wishes.  The attorney for the child (AFC) informed the court of the children’s wishes but supported custody by the father. The mother unsuccessfully argued a Lincoln hearing should have been held. The dissent agreed that a Lincoln hearing was necessary:

The mother further contends that the court erred in declining to conduct a Lincoln hearing. Inasmuch as the AFC expressed the children’s wishes to the court … , the children were both of young age … , and there are indications in the record that they were being coached on what to say to the court … , we perceive no abuse of discretion in the court’s denial of the mother’s request for a Lincoln hearing … . * * *

From the dissent:

While the decision whether to conduct a Lincoln hearing is discretionary, it is ” often the preferable course’ ” to conduct one … . Indeed, a child’s preference, although not determinative, is an “important” factor that provides the court, while considering the potential for influence and the child’s age and maturity, “some indication of what is in the child’s best interests” … . In addition, the in camera testimony of a child may ” on the whole benefit the child by obtaining for the [court] significant pieces of information [it] needs to make the soundest possible decision’ ” … .

In this case, the children were 10 and 7 years old, respectively, at the time of the proceeding, ages at which a child’s “wishes [are] not necessarily entitled to the great weight’ we accord to the preferences of older adolescents . . . [but are], at minimum, entitled to consideration’ ” … . Most importantly, the Attorney for the Children (AFC) substituted his judgment for that of the children and advocated that custody be transferred from the mother to the father, despite the fact that the children had been in the mother’s custody since birth and the fact that the father admitted to having committed an act of domestic violence against the mother. While the AFC did inform the court of the children’s expressed wishes to live with the mother, in my view, the court should have conducted a Lincoln hearing to consider those wishes and the reasons for them. Matter of Muriel v Muriel, 2020 NY Slip Op 00776,  Fourth Dept 1-31-20

 

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THE MAJORITY NOTED THAT A DECISION IS NOT AN APPEALABLE PAPER BUT HELD THE DECISION HERE IN THIS DIVORCE CASE MET THE ESSENTIAL REQUIREMENTS OF AN ORDER AND WAS THEREFORE APPEALABLE; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined that, although a decision is not an appealable paper, the decision in this divorce action was close enough to an order to support an appeal. The dissent disagreed:

As a preliminary matter, although not raised by the parties and although “[n]o appeal lies from a mere decision” (… see generally CPLR 5501 [c]; 5512 [a]), we conclude that the paper appealed from meets the essential requirements of an order, and we therefore treat it as such … .

From the dissent:

In 1987, this Court held that “[n]o appeal lies from a mere decision” (Kuhn v Kuhn, 129 AD2d 967, 967 [4th Dept 1987]). In reaching that conclusion, we relied on, inter alia, CPLR 5512 (a), titled “appealable paper,” which provides that “[a]n initial appeal shall be taken from the judgment or order of the court of original instance.” Until today, we have routinely followed that settled principle … . * * *

Here, the record includes a decision that is denominated only as a decision and has no ordering paragraphs and, in his notice of appeal, plaintiff explicitly appeals “from the Decision” (emphasis added). My colleagues in the majority believe that the decision is an appealable paper because it meets “the essential requirements of an order.” To support that proposition, the majority relies on Matter of Louka v Shehatou (67 AD3d 1476 [4th Dept 2009]), wherein this Court determined that a letter would be treated as an order inasmuch as “the Referee filed the letter with the Family Court Clerk and . . . the letter resolved the motion and advised the father that he had a right to appeal” (id. at 1476). Although the decision here was filed and resolved the motion, there was no directive in the decision that plaintiff had the right to appeal from it. Furthermore, I submit that almost all written decisions at least attempt to resolve the issues presented by the parties and many of those decisions are also filed. Nicol v Nicol, 2020 NY Slip Op 00740, Fourth Dept 1-31-20

 

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DEFENDANT’S ROBBERY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE IDENTIFICATION TESTIMONY WAS TOO WEAK TO MEET THE BEYOND A REASONABLE DOUBT STANDARD (SECOND DEPT).

The Second Department, reversing defendant’s conviction determined the identification evidence was too weak to support the conviction in this robbery case. The conviction was deemed to be against the weight of the evidence:

Upon the exercise of our independent factual review power (see CPL 470.15[5]), we conclude that the verdict of guilt was against the weight of the evidence. “[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the [factfinder] was justified in finding the defendant guilty beyond a reasonable doubt” … .

At the second trial, in this one-witness identification case, the complainant consistently had difficulty remembering details of the crime. She could not remember how she described the defendant, and when asked how she recognized him, she stated, “[b]y his shirt.” The description she provided of the perpetrator shortly after the incident did not match, in several ways, the defendant’s actual physical characteristics and appearance. Moreover, at the time of his arrest, several minutes after the incident, the defendant possessed neither the money nor the personal items which had allegedly been taken from the complainant. People v James, 2020 NY Slip Op 00615, Second Dept 1-29-20

 

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THE INTERIM DECISION ISSUED BY SUPREME COURT WAS NOT THE EQUIVALENT OF AN ORDER; THE FIRST DEPARTMENT, THEREFORE, DISMISSED THE APPEAL FOR LACK OF JURISDICTION (FIRST DEPT).

The First Department, dismissing the appeal in this Freedom of Information Law (FOIL) case, determined the “interim decision” was not an appealable paper, depriving the First Department of jurisdiction:

This proceeding stems from Spectrum News NY1’s (Spectrum) attempts to gain access to video files from the voluntary body camera experiment. Specifically, Spectrum filed a FOIL request for unredacted videos from the NYPD’s voluntary body camera program begun in 2014. NYPD denied the request, claiming that unredacted files were exempt from disclosure under FOIL. Spectrum then commenced this article 78 proceeding seeking a judgment compelling respondent NYPD to comply with its request. …

… [T]he parties stipulated that out of a disputed 328 videos, only 30 would be the subject of the hearing. Supreme Court then issued “an interim decision,” which was not the product of a motion for relief. Instead, the “interim decision,” among other things, permitted respondents to redact the faces of persons other than officers from any video footage recorded by the body cameras and to redact certain communications between officers … . …Supreme Court granted petitioner leave to appeal from the “interim decision.”

This appeal is thus taken from an “interim decision,” which is not an appealable paper. The lack of an appealable paper here deprives the Court of jurisdiction and requires dismissal of Spectrum’s appeal, albeit without prejudice. Where, as here, a party brings an appeal from a nonappealable paper, this Court regularly dismisses the appeal for lack of jurisdiction … . While there are instances where this Court has deemed a paper denominated as a “decision” to nonetheless be appealable because it contained all the hallmarks of an order … , that is not the situation here. Matter of Spectrum News NY1 v New York City Police Dept., 2020 NY Slip Op 00521, First Dept 1-28-20

 

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ANNOUNCING A SIGNIFICANT CHANGE IN ITS APPELLATE-REVIEW CRITERIA, THE 3RD DEPARTMENT NOW HOLDS THE FAILURE TO INCLUDE THE DATE, APPROXIMATE TIME OR PLACE OF A CHARGED OFFENSE IN A SUPERIOR COURT INFORMATION (SCI) OR A WAIVER OF INDICTMENT IS NOT A JURISDICTIONAL DEFECT AND THEREFORE MUST BE PRESERVED FOR APPEAL (THIRD DEPT).

The Third Department, departing from its precedent based upon a recent (November 2019) ruling by the Court of Appeals, determined the failure to include the date, approximate time or place of the charged offense in a superior court information (SCI) and/or a waiver of appeal is not a jurisdictional defect:

Defendant’s sole contention on this appeal, which the People have conceded based on this Court’s decision in People v Busch-Scardino (166 AD3d 1314 [2018]), is that the waiver of indictment is invalid and the superior court information (hereinafter SCI) is jurisdictionally defective for failing to set forth the approximate time of the charged offense in accordance with CPL 195.20. Indeed, that has been the standard we have applied since Busch-Scardino, and we further recognize that this is not a case where the time of the offense “is unknown or, perhaps, unknowable” … . …

The Court of Appeals recently addressed the validity of appeal waivers in three consolidated appeals, and, in one of the appeals, the Court also addressed the validity of that defendant’s waiver of indictment with respect to charges involving child sexual abuse (People v Lang, ___ NY3d ___, ___, 2019 NY Slip Op 08545, *7-9 [2019]). * * *

The reasoning of Lang requires this Court to reassess and abandon the standard enunciated in Busch-Scardino. There is no question here that the waiver of indictment was signed in open court with counsel present in accordance with the procedural requirements set forth in NY Constitution, article I, § 6, which “establishes the prima facie validity of the waiver of the right to prosecution by indictment” … . The “approximate time” of the arson charge under review constitutes nonelemental factual information. Lang instructs that we should look not only at the waiver of indictment and the SCI, but also at the local accusatory instruments to ascertain whether adequate notice was provided. Here, the felony complaint mirrors both the waiver and the SCI by providing the date and specific address, but without specifying the approximate time. Nonetheless, defendant raised no objection before County Court, made no demand for a bill of particulars and “lodges no claim that he lacked notice of the precise crime[] for which he waived prosecution by indictment” … . In context, we conclude that the defect here was not jurisdictional and that defendant forfeited his challenge upon his plea of guilty … . People v Elric YY., 2020 NY Slip Op 00326, Third Dept 1-16-20

 

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IN A SIGNIFICANT DEPARTURE FROM PRECEDENT BASED UPON A NOVEMBER 2019 COURT OF APPEALS DECISION, THE FAILURE TO INCLUDE THE DATE, APPROXIMATE TIME OR PLACE OF A CHARGED OFFENSE IN A SUPERIOR COURT INFORMATION (SCI) OR A WAIVER OF INDICTMENT IS NOT A JURISDICTIONAL DEFECT AND THEREFORE MUST BE PRESERVED FOR APPEAL (THIRD DEPT).

The Third Department, departing from its precedent based upon a recent (November 2019) ruling by the Court of Appeals, determined the failure to include the date, approximate time or place of the charged offense in a superior court information (SCI) and/or a waiver of appeal is not a jurisdictional defect. Any challenge to the SCI or waiver of appeal on this ground must be preserved and, if it is not, the challenge is forfeited by a guilty plea:

… [W]e note that this Court, relying on People v Boston (75 NY2d 585, 589 [1990]), has previously held that the failure to strictly comply with the statutory requirements for waiving indictment pursuant to CPL 195.20 — including the failure to include the approximate time of each offense charged in the waiver of indictment or SCI — constitutes a jurisdictional defect that may be raised at any time, is not subject to the preservation requirement and is not precluded by a defendant’s guilty plea or waiver of the right to appeal … . However, the Court of Appeals recently decided People v Lang (___ NY3d ___, 2019 NY Slip Op 08545 [2019]) wherein it rejected the argument that omission of the approximate time of the charged offense in the waiver of indictment and/or SCI constitutes a jurisdictional defect — the same argument presently raised by defendant — specifically holding that the omission of such a fact presents a mere “technical challenge” as it constitutes “non-elemental factual information that is not necessary for a jurisdictionally-sound indictment” … . Accordingly, insofar as the subject waiver of indictment and SCI provided defendant with adequate notice of the date and location of the charged offenses, and as omission of the approximate time of the charged offense from the waiver of indictment and/or SCI constituted a nonjurisdictional defect … to which defendant did not object at a time when Supreme Court could have addressed the alleged deficiency, defendant’s present challenge was forfeited by his guilty plea … . People v Shindler, 2020 NY Slip Op 00327, Third Dept 1-16-20

 

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THE IDENTIFICATION EVIDENCE WAS TOO WEAK TO PROVIDE PROBABLE CAUSE FOR ARREST, DEFENDANT’S STATEMENTS SHOULD HAVE BEEN SUPPRESSED; THE APPELLATE COURT CAN NOT CONSIDER THE PEOPLE’S ARGUMENT THAT DEFENDANT WAS NOT IN CUSTODY WHEN HE MADE THE STATEMENTS BECAUSE THE ISSUE WAS NOT RULED ON BELOW (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction and ordering a new trial, determined the identification evidence was too weak to constitute probable cause for defendant’s arrest. Therefore defendant’s motion to suppress his statements should have been granted. The court noted that the People’s argument that defendant was not in custody when the statements were made could not be considered because the issue was not ruled upon by the trial court:

Contrary to the Supreme Court’s finding, no evidence was presented at the hearing that the defendant was identified “from a photographic image taken from one of the videos.” Detective John Kenney testified that a witness provided a description of the person she had seen holding a gun after shots were fired, including that the person was riding a bicycle. Kenney indicated that the witness was shown a photograph taken from a video recorded outside a restaurant near the scene of the crime, and that the witness identified the person depicted in the photograph as the individual she had seen holding a gun. Kenney also testified that another witness identified the person depicted in that photograph as the individual he had seen riding a bicycle after hearing the gunshots. However, no testimony was elicited that the person depicted in the photograph was identified as the defendant. Further, Detective Patrick Henn testified that another video was recorded across the street from the defendant’s home “just before the crime,” showing a person who “appeared to be the defendant” leaving his home several blocks away from the scene of the crime on a bicycle. However, no testimony was elicited that the witnesses were shown a photograph taken from the video of the defendant’s home, let alone that the witnesses identified the person depicted in that video as the person they saw holding a gun or riding a bicycle after the shots were fired. The mere fact that a person believed to be the defendant was observed riding a bicycle several blocks away from the scene of the crime, shortly before the shooting, is too innocuous, standing alone, to support a finding of probable cause … . Further, Henn’s conclusory testimony that the defendant “became the prime suspect” based on “[v]ideos and canvasses conducted,” without further details, was insufficient to demonstrate the existence of probable cause … . Consequently, the People failed to establish that the police had probable cause to arrest the defendant, and thus, the court should have suppressed, as fruits of the unlawful arrest, the lineup identification testimony and the defendant’s statements made to law enforcement officials on October 24, 2011 … . People v Kamenev, 2020 NY Slip Op 00301, Second Dept 1-15-20

 

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AMENDMENT TO SOCIAL SERVICES LAW EXTENDING SUBSIDIES FOR CHILDREN CARED FOR BY A GUARDIAN UNTIL AGE 21 SHOULD HAVE BEEN APPLIED RETROACTIVELY; THE MATTER IS APPEALABLE AS OF RIGHT (FIRST DEPT).

The First Department, reversing Family Court, determined the amendment to Social Services Law 458-b allowing monthly subsidies for children cared for by guardians to be extended to age 21 (from 18) should be applied retroactively. The matter was deemed appealable as of right:

… [T]he order is appealable as of right, because it is an order of disposition that terminates the children’s guardianship placement once the children reach the age of 18 and terminates the proceeding itself … . In any event, this Court can deem a notice of appeal from the denial of the motion a request for permission to appeal and we would grant that request … . …

A review of the legislative history supports the conclusion that the amended statute is remedial in nature. … [W]e can discern from the legislative history that the intent was to remove the disparity created between foster/adoptive parents and guardians since foster/adoptive parents are able to obtain subsidies notwithstanding the age of the child at the time of fostering or adoption.

The mere fact that the amended statute is remedial in nature is not determinative as to whether it should be applied retroactively … . … [A] remedial amendment will only be applied retroactively if it does not impair vested rights … .

… [T]he amendment does not create a new entitlement; rather it expands “existing benefits to a class of persons arbitrarily denied those benefits by the original legislation” … . There is no dispute that had the children been adopted by the grandmother and remained with her under the auspices of foster care, or had the grandmother proceeded with guardianship after they turned 16, they would have been entitled to subsidies until the children turned 21. Matter of Jaquan L. (Pearl L.), 2020 NY Slip Op 00213, First Dept 1-9-20

 

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SENTENCE WHICH INCLUDED BOTH JAIL TIME AND PROBATION FOR VIOLATION OF A CHILD SUPPORT ORDER IS ILLEGAL; AN ILLEGAL SENTENCE IS APPEALABLE WITHOUT PRESERVATION OF THE ERROR (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the imposition of a jail sentence and probation for father’s failure to pay support in violation of a court order was illegal. An illegal sentence is appealable without preservation of the error:

Although the father failed to preserve his challenge to the legality of his sentence, a challenge to an unlawful sentence is not subject to the preservation rule … . Family Court Act § 454 expressly delineates the authority of the Family Court to impose either probation or a term of incarceration upon a finding of a willful violation of an order of support, not both (… Family Court Act § 454[3]). Thus, the Family Court was without authority to impose both a jail term and probation (see Family Court Act § 454[3] …). Since the father completed his 90-day term of incarceration, that portion of his sentence imposing probation must be vacated … . Matter of Lopez v Wessin, 2020 NY Slip Op 00137, Second Dept 1-8-20

 

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