You are here: / Appeals
,

GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, COLLOQUY DID NOT INFORM DEFENDANT OF ALL THE RIGHTS SHE WAS GIVING UP (THIRD DEPT).

The Third Department, reversing County Court and vacating defendant’s guilty plea, over a two-justice concurrence and a dissent, exercised its interest of justice appellate jurisdiction because defendant was not fully informed of the rights she was giving up by entering a guilty plea. The concurrence argued that the potential consequences of the relief granted by an appellate court should not be part of the equation in exercising the interest of justice jurisdiction. The majority noted that defendant had already served her sentence and will now face the original charges. The dissent argued this was not an appropriate case for invoking the interest of justice appellate jurisdiction:

In a notably brief plea colloquy, County Court advised defendant that, by pleading guilty, she would forever relinquish “the right to go to trial, the right to testify, to call witnesses, [and to] cross-examine the People’s witness[es].” There was no discussion of the privilege against self-incrimination or the right to be tried by a jury, nor was there any inquiry into whether defendant had conferred with counsel and understood the constitutional rights that she was automatically waiving by pleading guilty … . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … . As this record contains no such showing, the guilty plea is invalid … . People v Glover, 2019 NY Slip Op 05587, Third Dept 7-11-19

 

, , , ,

THE DENIAL OF DEFENDANT’S MOTION TO LIMIT THE EXPERT TESTIMONY PLAINTIFF COULD OFFER AT TRIAL DID NOT LIMIT THE ISSUES TO BE TRIED; THEREFORE ANY APPEAL MUST AWAIT THE CONCLUSION OF THE TRIAL; APPEAL DISMISSED (THIRD DEPT).

The Third Department determined defendant doctor could not appeal the denial of defendant’s motion to limit the expert testimony which plaintiff could offer at trial in this medical malpractice action. The motion court’s ruling did not limit the issues to be tried. Therefore an appeal must be brought after trial:

It is well settled that “an order which merely determines the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . Here, Supreme Court’s decision merely permits the infant to offer various testimony of his expert witnesses and does not limit the scope of issues to be tried … . Therefore, appellate review of the court’s ruling “must await the conclusion of a trial so that the relevance of the proffered evidence, and the effect of [the court’s] ruling with respect thereto, can be assessed in the context of the record as a whole” … . Accordingly, this appeal must be dismissed … . C.H. v Dolkart, 2019 NY Slip Op 05614, Third Dept 7-11-19

 

, , , , ,

ARTICLE 78 ACTION SEEKING TO PROHIBIT THE TRIAL JUDGE IN A CRIMINAL CASE FROM EXCLUDING TESTIMONY AS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE DISMISSED AS INAPPROPRIATE; MATTER CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department determined the Article 78 proceeding brought by the district attorney against the trial judge in a criminal case seeking prohibition should have been dismissed. The trial judge had ruled that the conversations between an attorney and the defendant at the scene of the crime were protected by attorney-client privilege. The Article 78 action sought to prohibit the trial judge from adhering to that ruling. At the time of this Article 78 proceeding the criminal trial was over and defendant had been convicted. The matter was considered as an exception to the mootness doctrine:

Prohibition is an extraordinary remedy and, in cases involving the exercise of judicial authority, “is available only where there is a clear legal right, and then only when a court . . . acts or threatens to act either without jurisdiction or in excess of its authorized powers” … . Respondent had jurisdiction over the criminal action against Mercer … and was empowered to preclude Doyle from testifying about matters protected by the attorney-client privilege … . Petitioner’s core complaint is that respondent erred in determining the scope of that privilege, and she may be correct … . Nevertheless, “prohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power” … . To allow review of such matters would have an array of negative impacts, encouraging gamesmanship, “erect[ing] an additional avenue of judicial scrutiny in a collateral proceeding and . . . frustrat[ing] the statutory or even constitutional limits on review” … . Thus, inasmuch as petitioner does not point to “an unlawful use or abuse of the entire action or proceeding,” but rather “an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding,” prohibition will not lie … . Matter of Heggen v Sise, 2019 NY Slip Op 05620, Third Dept 7-10-19

 

, ,

EXCESSIVE INTERFERENCE BY THE TRIAL JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL; ISSUE CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge’s intervention usurped the roles of the attorneys and deprived defendant of a fair trial. Defense counsel did not object but the issue was considered on appeal in the interest of justice:

“[W]hile a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on the function or appearance of an advocate'” … . “The principle restraining the court’s discretion is that a trial judge’s function is to protect the record, not to make it'”… . Hence, “when the trial judge interjects often and indulges in an extended questioning of witnesses, even where those questions would be proper if they came from trial counsel, the trial judge’s participation presents significant risks of prejudicial unfairness” … .

In this case, the Supreme Court engaged in extensive questioning of witnesses, usurped the roles of the attorneys, elicited and assisted in developing facts damaging to the defense on direct examination of the People’s witnesses, bolstered the witnesses’ credibility, interrupted cross-examination, and generally created the impression that it was an advocate on behalf of the People. People v Ramsey, 2019 NY Slip Op 05571, Second Dept 7-10-19

 

, , ,

WITNESS DID NOT IDENTIFY THE DEFENDANT AT A LINEUP, SAYING ONLY SHE WAS ‘LEANING TOWARD’ CHOOSING THE DEFENDANT, THAT TESTIMONY WAS INADMISSIBLE UNDER CPL 60.25; PROSECUTOR’S REMARKS IN SUMMATION HARSHLY CRITICIZED (SECOND DEPT).

The Second Department, reversing defendant’s conviction in the interest of justice, determined a witness’s testimony about a lineup identification procedure in which the witness indicated only she was “leaning toward” choosing the defendant was inadmissible. The Second Department further criticized the prosecutor’s summation:

… [T]he foundational requirements of CPL 60.25 were not met …. CPL 60.25 is principally concerned with cases where a witness who has validly identified a defendant on a prior occasion is, nevertheless, unable to make a trial identification due to a lapse of memory … permits a witness to testify in a criminal proceeding about his or her own prior identification where the witness is “unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question” … . The second witness never identified the defendant at the lineup and, thus, there was no prior identification for her to testify about under CPL 60.25 … .

Notably, the impact of the second witness’s testimony was highly prejudicial to the defendant. Identification was a crucial and contested issue in this case. Without the second witness’s testimony regarding whom she would “lean toward,” the evidence of identity consisted primarily of the testimony of the first witness, whose veracity and credibility were questioned because he had lied to detectives and an assistant district attorney, absconded from a police station, and received an extremely favorable cooperation agreement in exchange for his testimony at the defendant’s trial. …

… [T]he prosecutor improperly argued to the jury that there were “no coincidences,” that the defendant was not the “unluckiest guy” in Brooklyn, that “the evidence fits together . . . all the pieces connect,” that “all the evidence points directly at [the defendant] . . . because he’s guilty. Because he did these crimes,” … and that the jury would have to do “a lot of mental gymnastics to believe the defendant did not commit this crime.” She vouched for the credibility of the first witness, arguing that if he had been lying, he would have testified that the defendant “stab[bed] two people.” The prosecutor also referred to the defendant as engaging in “machismo” at the time of the events in question. People v Robles, 2019 NY Slip Op 05572, Second Dept 7-10-19

 

,

RECORD IS NOT SUFFICIENT TO DETERMINE HOW THE TRIAL COURT HANDLED NOTES FROM THE JURY, NEW TRIAL ORDERED; CHALLENGE TO THE PROPRIETY OF HOLDING A RECONSTRUCTION HEARING IS MOOT AND WILL NOT BE CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing the conviction, determined the record was not sufficient to determine how the trial court handled notes from the jury and reversal was therefore required:

… [R]eversal is required as a result of ” the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30′ ” in response to two substantive jury notes … . Here, the stenographer was unable to transcribe the final day of the trial that included County Court’s handling of the jury notes due to an error that rendered the subject electronic stenographic notes unrecoverable, and a reconstruction hearing failed to establish the court’s on-the-record handling of those notes. We “cannot assume that the proper procedure was utilized when the record is devoid of information as to how jury notes were handled” … . We therefore reverse the judgment and grant a new trial. In light of our determination, defendant’s challenge to the propriety of holding a reconstruction hearing under these circumstances is moot, and we reject defendant’s contention that his challenge falls within the exception to the mootness doctrine … . People v Grimes, 2019 NY Slip Op 05461, Fourth Dept 7-5-19

 

, , ,

PLEA ALLOCUTION NEGATED AN ESSENTIAL ELEMENT OF THE CHARGED VIOLATION OF THE CORRECTION LAW, THE ISSUE SURVIVES THE FAILURE TO MOVE TO WITHDRAW THE PLEA AND THE WAIVER OF APPEAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction for a violation of the Correction Law, determined that the plea allocution negated an essential element of the offense. Because the voluntariness of the plea was called into question the issue survived the failure to move to withdraw the plea and the waiver of appeal:

A sex offender is required to register with the Division “no later than ten calendar days after any change of address” and to pay a fee of ten dollars “each time such offender registers any change of address” (Correction Law § 168-f[4]). A sex offender who fails to so register within the required time period is guilty of a felony (seeCorrection Law § 168-t).

As the defendant contends, his factual allocution during the plea proceeding negated an essential element of the offense charged, thereby casting significant doubt upon his guilt. Specifically, the defendant indicated that he provided the Division with the address of a homeless shelter that he was using, although he acknowledged that there were some nights when he could not stay in the shelter. He explained “sometimes if you don’t get there in time all the beds are taken, so sometimes you get turned away.” On those days, the defendant asserted, he stayed at a friend’s house instead. These statements tended to demonstrate that the defendant did not, in fact, change his address and thus, was not required to notify the Division … . People v Wright, 2019 NY Slip Op 05428, Second Dept 7-3-19

 

,

THE ORDER OF PROTECTION WAS NOT SUFFICIENTLY TIED TO THE BEST INTERESTS OF THE CHILD IN THIS NEGLECT PROCEEDING AND SHOULD HAVE BEEN VACATED, ISSUE CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department, reversing Family Court in this neglect proceeding, determined that the order of protection requiring respondent putative father to undergo random urine, breath and blood tests was not sufficiently linked to the best interests of the child. Although the issue was moot in respondent’s case, the Third Department considered the issue, which is likely to recur, as an exception to the mootness doctrine:

… [U]nder the circumstances of this case, the record does not support Family Court’s conclusion that the conditions imposed upon respondent were necessary to further the purposes of protecting the child. At the time that the neglect proceeding was commenced against him and when Family Court entered the temporary order, respondent did not have legal or physical custody of the child; he only had limited parenting time with the child. Yet, the conditions imposed in the temporary order bore no connection to respondent’s parenting time with the child (see Family Ct Act §§ 1029 [a]; 1056 [1] [i]… ). For example, the temporary order generally required respondent to submit to random urine, breath or other tests upon petitioner’s request, rather than requiring that such test occur prior to respondent’s parenting time. The conditions were broad and designed to compel respondent to address his alleged alcohol and substance abuse issues. Family Court adopted petitioner’s proposed conditions without an adequate connection to or explanation as to how each of the conditions related to the protection of the child. Accordingly, we agree with respondent that the temporary order was improper and that Family Court should have granted respondent’s motion to vacate. Matter of Carmine GG. (Christopher HH.), 2019 NY Slip Op 05360, Third Dept 7-3-19

 

, ,

FATHER, WHO DID NOT SUBMIT A PETITION FOR CUSTODY, WAS PRECLUDED FROM PRESENTING EVIDENCE OF HIS FITNESS AS A PARENT IN THIS CUSTODY PROCEEDING BROUGHT BY MOTHER; FATHER WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS; ALTHOUGH FATHER DID NOT OBJECT, THE APPELLATE COURT HAS INHERENT AUTHORITY TO CORRECT FUNDAMENTAL ERRORS (THIRD DEPT). ​

The Third Department, reversing Family Court, determined father was deprived of due process of law because he was not allowed to put in evidence of his fitness as a parent in this custody proceeding brought by mother. Father did not file a custody petition. For that reason Family Court refused to allow father to put in evidence. The Third Department noted father did not object at trial but exercised its inherent authority to correct fundamental errors:

An initial custody determination must be based upon the best interests of the child, taking into account all relevant factors, including “the parents’ past performance and relative fitness, their willingness to foster a positive relationship between the child and the other parent, as well as their ability to maintain a stable home environment and provide for the child’s overall well-being” … . By this standard, the court must assess the qualifications of both parents in determining what custody determination best serves the interests of the child. In its decision, Family Court expressly held that because the father did not also file a custody petition, it could “only take into consideration the testimony brought by the mother.” There were several instances during the trial where the court precluded testimony from the father and his witness because he did not file a petition. As a result, the father was prevented from addressing all of the relevant factors, including who should be the primary custodian and what he did to foster a relationship between the child and the mother. The father’s stepfather was precluded from testifying as to his observations of the father as a parent. The father was allowed to briefly testify as to his average day with the child at the conclusion of testimony … . …

We are mindful that the father did not raise any objections at trial to Family Court’s evidentiary limitations. We are also mindful that the father was able to briefly testify as to his interactions with the child. That said, this court has inherent authority to exercise its discretion and correct fundamental errors … . In our view, the court’s failure to allow the father a full and fair opportunity to present evidence, coupled with the court’s own limitations on its decision, constitutes a fundamental due process error requiring reversal of Family Court’s order … . Matter of Liska J. v Benjamin K., 2019 NY Slip Op 05347, Third Dept 7-3-19

 

,

MATTER REMITTED FOR A HEARING ON WHETHER THE TRIAL COURT WAS, OR SHOULD HAVE BEEN, AWARE OF A NOTE FROM THE JURY SUCH THAT THE RESPONSIBILITY TO NOTIFY COUNSEL WAS TRIGGERED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, holding the appeal in abeyance, determined a hearing was required to determine whether the trial court was aware, or should have been aware, of the existence of a note from the jury such that the court’s responsibility to alert counsel was triggered:

We find this case similar to People v Meyers (___ NY3d ___, 2019 NY Slip Op 03658 [2019]), in which the Court of Appeals addressed the circumstance where a purported jury note that had been marked as a court exhibit was discovered in the court file after the trial, presenting circumstances suggesting that it may have been a draft that the jury discarded or chose not to submit to the trial court. * * *

Here, as in Meyers, we are presented with a scanty and ambiguous record, precluding this Court from determining whether County Court’s core responsibilities were triggered by its knowledge of the note or by circumstances that should have alerted the court to its presence. Accordingly, we remit the matter for a hearing to assess the circumstances pertaining to the events at trial during the jury’s deliberations and the acceptance of its verdict, including the transmission, receipt, marking and communication to the court of all three notes, and for a report to this Court setting out the court’s findings. People v Johnson, 2019 NY Slip Op 05344, Third Dept 7-3-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy