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2003 DEPRAVED INDIFFERENCE MURDER CONVICTION REVERSED, THE CASE WAS ON APPEAL WHEN THE COURT OF APPEALS DETERMINED AN INTENTIONAL MURDER OF A SINGLE VICTIM WITH A WEAPON DOES NOT MEET THE CRITERIA FOR DEPRAVED INDIFFERENCE MURDER (FOURTH DEPT).

The Fourth Department determined a 2003 murder depraved indifference murder conviction must be reversed because the case was on appeal when the law of depraved indifference murder was clarified to exclude the intentional murder of a single victim with a weapon:

… [W]e conclude that the evidence establishes that defendant accosted decedent, who was leaving a grocery store. Defendant, who told police investigators he had been informed that decedent had been sent by another man to injure defendant, confronted decedent, grabbed him by either his clothing or by a gold necklace that he was wearing, and dragged him across the street. A friend of decedent’s attempted to intervene at some point, at which time defendant displayed a weapon and attempted to shoot the friend, but the gun did not fire. Defendant struck decedent in the face with the handgun, and decedent’s friend ran to his car and drove it toward the location where defendant was with decedent. Defendant then fired the weapon approximately eight times. At least six of those shots hit decedent, including two shots that entered his back, and two shots hit the car that decedent’s friend was driving. …

In his motion for a trial order of dismissal with respect to the count of depraved indifference murder, defense counsel argued that defendant’s “conduct was intentional or it was nothing at all. If this isn’t intentional I don’t know what is.” Thus, the issue raised on this de novo appeal was presented to Supreme Court and is therefore preserved for our review.

Next, although defendant was convicted before the Court of Appeals decided People v Feingold (7 NY3d 288, 296 [2006]), which definitively stated for the first time that the depraved indifference element of depraved indifference murder is a culpable mental state rather than the circumstances under which the killing is committed, the People correctly concede that the Feingold standard applies to this appeal inasmuch as defendant’s direct appeal was pending when Feingold was decided … . People v Parris, 2019 NY Slip Op 04828, Fourth Dept 6-14-19

 

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COUNTY COURT DENIED PETITIONER’S MOTION TO DISMISS AN INDICTMENT ON THE GROUND THE PEOPLE HAD LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE INDICTMENT AT THE TIME HE PLED GUILTY TO A PRIOR INDICTMENT (CPL 40.40); PETITIONER’S REMEDY IS DIRECT APPEAL, NOT THE INSTANT ARTICLE 78 PETITION SEEKING PROHIBITION OR MANDAMUS (THIRD DEPT).

The Third Department determined petitioner must seek review of the denial of a motion to dismiss an indictment pursuant to CPL 40.40 by direct appeal, not by the instant Article 78 action for prohibition or mandamus re: the district attorney and the judge. Petitioner moved to dismiss the indictment on the ground that the People had legally sufficient evidence to support the indictment at the time he pled guilty to a prior indictment. County Court denied that motion without a hearing, even though County Court noted it could not determine whether the People had legally sufficient evidence at the time petitioner pled guilty:

The District Attorney contends that petitioner may not obtain collateral review of County Court’s denial of his motion through a CPLR article 78 proceeding. We agree. “Neither [of the extraordinary remedies of] prohibition nor mandamus lies as a means to obtain collateral review of an alleged error of law particularly where, as here, there is an adequate remedy at law by way of a direct appeal” … . Any error in County Court’s decision denying petitioner’s motion to dismiss indictment No. 3 without a hearing is, at most, a mere error of law that does not justify the invocation of the extraordinary remedies sought … . Matter of Davis v Nichols, 2019 NY Slip Op 04794, Third Dept 6-13-19

 

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COURT MUST CONSIDER WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS, A VALID WAIVER OF APPEAL DOES NOT BAR RAISING THE ISSUE (SECOND DEPT).

The Second Department, vacating the sentence and sending the matter back because the court did not consider whether defendant should be afforded youthful offender status, noted that a valid waiver of appeal would not bar raising this issue on appeal (the waiver here was deemed invalid):

CPL 720.20(1) requires that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, even where the defendant fails to request such treatment, or agrees to forgo it as part of a plea agreement . Contrary to the People’s contention, the … defendant’s waiver of his right to appeal was invalid because the Supreme Court failed to confirm that the defendant understood the nature of the right to appeal and the consequences of waiving it … . In any event, a valid waiver would not bar the defendant’s contention that the court failed to consider youthful offender treatment … . People v Ramirez. 2019 NY Slip Op 04727, Second Dept 6-12-19

 

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APPEAL OF THE STATUTORY SPEEDY TRIAL ISSUE FORECLOSED BY THE GUILTY PLEA AND THE WAIVER OF APPEAL; THE STATEMENT-SUPPRESSION ISSUE FORECLOSED BY THE WAIVER OF APPEAL; THE CONSTITUTIONAL SPEEDY TRIAL ISSUE WAS ABANDONED (FOURTH DEPT).

The Fourth Department noted: (1) the statutory speedy trial issue is foreclosed by defendant’s guilty plea; (2) the statutory speedy trial issue is foreclosed by the waiver of appeal; (3) the statement-suppression issue is foreclosed by the waiver of appeal; and (4) because defendant pled guilty before Supreme Court decided the constitutional speedy trial issue that issue was abandoned. People v Hardy, 2019 NY Slip Op 04555, Fourth Dept 6-7-19

 

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COUNTY COURT’S DETERMINATION THE EVIDENCE BEFORE THE GRAND JURY WAS LEGALLY SUFFICIENT IS NOT REVIEWABLE AFTER A CONVICTION BASED UPON LEGALLY SUFFICIENT EVIDENCE (FOURTH DEPT).

The Fourth Department noted that appellate review of a court’s determination of the sufficiency of the evidence presented to the grand jury is not reviewing upon appeal of a conviction based upon legally sufficient trial evidence:

Defendant’s contention regarding the legal sufficiency of the evidence with respect to the operability of the stun gun is not preserved for our review inasmuch as her motion for a trial order of dismissal was not ” specifically directed’ at [that] alleged” deficiency in the proof … . In any event, the evidence, which included the testimony of a firearms examiner who tested the device at issue, viewed in the light most favorable to the People … , is legally sufficient to support the conviction. …

County Court’s determination with respect to the legal sufficiency of the evidence before the grand jury is “not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence” (CPL 210.30 [6] …). People v Washington, 2019 NY Slip Op 04553, Fourth Dept 6-7-19

 

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PORTIONS OF THE RESPONDENTS’ APPRAISAL REPORT IN THIS CONDEMNATION PROCEEDING SHOULD NOT HAVE BEEN STRUCK BECAUSE THE PROPER VALUATION METHOD WAS USED; THE EVIDENTIARY RULING ON THE MOTION IN LIMINE IS APPEALABLE BECAUSE THE RULING AFFECTS THE SCOPE OF THE TRIAL ISSUES (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the portions of motion in limine seeking to strike parts of respondents’ appraisal report in this condemnation proceeding should not have been granted. The court noted that the evidentiary ruling was appealable because it limited the scope of the trial issues. The court further noted that the proof of valuation offered at trial must be limited to the valuation method(s) described in the appraisal report:

Where, as here, “the highest and best use is the one the property presently serves and that use is income-producing, then the capitalization of income is a proper method of valuation” … . In our view, the stricken portion of respondents’ appraisal report, although titled “investment valuation,” applied an income capitalization approach using the standard income capitalization formula, i.e., value equals net income divided by a capitalization rate … , and applied factors that, according to respondents’ appraiser, accurately reflect the property’s value and would make the property more appealing to prospective purchasers. To the extent that petitioner contends that certain factors considered by respondents’ appraiser in valuing the property do not accurately reflect market value, “[t]he fact that some aspects of the valuation methodology [of respondents’ appraiser] may be subject to question goes to the weight to be accorded the appraisal[],” not its admissibility … . … Matter of Rochester Genesee Regional Transp. Auth. v Stensrud, 2019 NY Slip Op 04612, Fourth Dept 6-7-19

 

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IF A DEFENDANT IS NOT SENTENCED AS A PREDICATE FELON THE MINIMUM SENTENCE MUST BE ONE-THIRD OF THE MAXIMUM, NOT ONE-HALF AS IT WAS HERE, AN APPELLATE COURT CAN NOT LET AN ILLEGAL SENTENCE STAND (FOURTH DEPT).

The Fourth Department noted that, where a defendant is not sentenced as a predicate felon, the minimum sentence is one-third of the maximum, not one-half of the maximum:

We note, however, that the court imposed an illegal sentence of 3½ to 7 years’ imprisonment on defendant’s conviction for CPW in the third degree. Because defendant was not sentenced as a predicate felon, the minimum period of her indeterminate sentence on this conviction must be one-third of the maximum period, not one-half as fixed by the court (see Penal Law § 70.00 [3] [b]). “Although the issue is not raised by either party, we cannot allow an illegal sentence to stand” … . We therefore modify the judgment by reducing defendant’s sentence on that count to an indeterminate term of 2⅓ to 7 years’ imprisonment. People v Simpson, 2019 NY Slip Op 04538, Fourth Dept 6-7-19

 

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WHEN A PARTY’S ATTORNEY APPEARS THE PARTY IS NOT IN DEFAULT AND MAY THEREFORE APPEAL, FAMILY COURT SHOULD NOT HAVE AWARDED CUSTODY TO NONPARENTS ABSENT A HEARING DEMONSTRATING EXTRAORDINARY CIRCUMSTANCES AND THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department determined mother was not in default, because her attorney had appeared, and therefore mother can appeal the award of custody to the nonparent petitioners. The Fourth Department further determined Family Court should have held a hearing to determine whether extraordinary circumstances justified awarding custody to nonparents. The prior consent order of custody in favor of the nonparents does not demonstrate extraordinary circumstances:

“A parent’s right to be heard on a matter of child custody is fundamental and not to be disregarded absent a convincing showing of waiver’ ” … . Moreover, “[i]t is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” … and further establishes that an award of custody to the nonparent is in the best interests of the child … . “The burden of proving extraordinary circumstances rests on the nonparent, and the mere existence of a prior consent order of custody in favor of the nonparent is not sufficient to demonstrate extraordinary circumstances”… . Inasmuch as the court erred in depriving the mother of custody without conducting the requisite evidentiary hearing … , we reverse and remit the matter to Family Court for a hearing on the custody petition. Matter of Hilton v Hilton, 2019 NY Slip Op 04572, Fourth Dept 6-7-19

 

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DEFENDANT WAS NOT ADEQUATELY INFORMED OF THE RISKS OF CONTINUING TO BE REPRESENTED BY DEFENSE COUNSEL IN THE PLEA PROCEEDINGS AFTER THE JUDGE AND DEFENSE COUNSEL WERE INFORMED DEFENSE COUNSEL’S FORMER AND CURRENT CLIENTS WOULD BE WITNESSES AT DEFENDANT’S TRIAL, DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT).

The Third Department determined the judge did not adequately inform defendant of the risks of continuing to be represented by defense counsel in the plea proceedings after defense counsel and the judge had been informed of a conflict of interest should the matter go to trial. Several persons who would be called as witnesses by the People were former or current clients of defense counsel:

Once informed of the conflict, County Court had a duty to inquire whether defendant understood the risks of defense counsel’s continued representation and, knowing those risks, was choosing to waive the conflict … . However, the court did not make such an inquiry. Rather, the court merely informed defendant, while simultaneously reiterating the plea agreement that defense counsel had secured for him, that defense counsel would “probably” have a conflict if the matter continued. Therefore, defense counsel’s conflicted representation of defendant, absent a proper and informed waiver, deprived defendant of his right to the effective assistance of counsel … . People v Marshall, 2019 NY Slip Op 04499, Third Dept 6-6-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT AND VACATED THE DEFAULT JUDGMENT, ALTHOUGH A SUA SPONTE ORDER IS NOT APPEALABLE AS OF RIGHT, THE NOTICE OF APPEAL WAS DEEMED A MOTION FOR LEAVE TO APPEAL (FIRST DEPT). ​

The First Department, reversing Supreme Court, held that Supreme Court should not have, sua sponte, dismissed plaintiff’s complaint and vacated the default judgment as untimely, Plaintiff had timely moved for a default judgment. Although sua sponte orders are not appealable as of right, the First Department deemed the notice of appeal as a motion for leave to appeal:

An order issued sua sponte is not appealable as of right (see Sholes v Meagher, 100 NY2d 333, 335 [2003]). However, given the nature of the motion court’s sua sponte relief in dismissing the complaint pursuant to CPLR 3215(c), we deem the notice of appeal to be a motion for leave to appeal, and grant such leave (…CPLR 5701[c]).

The record is clear that plaintiff had moved for a default judgment within one year, and thus, the motion court’s sua sponte vacature of the judgment and dismissal of the complaint as untimely was in error … . In view of this decision, the merits of defendant’s motion to vacate the default judgment are no longer moot and it is remanded back to the trial court for consideration on the merits. New Globaltex Co., Ltd. v Zhe Lin, 2019 NY Slip Op 04456, First Dept 6-6-19

 

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