You are here: / Appeals
, ,

DEFENDANT’S KIDNAPPING CONVICTIONS VACATED PURSUANT TO THE DOCTRINE OF MERGER, DEFENDANT WAS ALSO CONVICTED OF MURDER, BURGLARY AND ROBBERY, APPEAL CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, noting the outcome of the appeal by a co-defendant, in the interest of justice, determined defendant’s kidnapping convictions should be vacated pursuant to the merger doctrine. Defendant was convicted of murder, kidnapping, burglary and robbery:

The defendant and Domingo Mateo were indicted on charges of murder in the second degree, kidnapping in the first and second degrees, burglary in the first degree, and robbery in the first and second degrees in connection with a home invasion, which occurred on May 3, 2011, and resulted in the death of one of the occupants of the home. Mateo was tried separately and convicted on all counts. Thereafter, the defendant was tried and convicted on all counts. On Mateo’s appeal, this Court found that his conviction of kidnapping in the second degree was precluded by the merger doctrine and modified the judgment of conviction by vacating the conviction of kidnapping in the second degree and the sentence imposed thereon, and dismissing that count of the indictment as to that defendant (see People v Mateo, 148 AD3d 727).

The defendant now contends that his conviction of kidnapping in the second degree was precluded by the merger doctrine. Although his contention is unpreserved for appellate review (see CPL 470.05[2]), we nevertheless reach the issue in the exercise of our interest of justice jurisdiction, vacate the defendant’s conviction of kidnapping in the second degree and the sentence imposed thereon, and dismiss that count of the indictment as to the defendant … . People v Mejia, 2019 NY Slip Op 00903, Second Dept 2-6-19

 

,

SENTENCING COURT MUST CONSIDER YOUTHFUL OFFENDER STATUS EVEN WHERE IT IS NOT REQUESTED OR WHERE DEFENDANT AGREES TO FORGO IT AS PART OF A PLEA BARGAIN (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined defendant’s waiver of appeal was invalid and the sentencing court was required to consider youthful offender status, even when not requested:

The defendant’s purported waiver of his right to appeal was invalid … . Although the defendant signed a written waiver, the Supreme Court provided the defendant with no explanation as to the nature of the right to appeal and the consequences of waiving it … , nor did the court ask the defendant whether he read the waiver form before signing it … . Moreover, the court conflated the trial rights the defendant waived automatically by pleading guilty with the right to appeal … . In any event, the defendant’s contention that the court failed to consider whether to afford him youthful offender treatment would not have been barred by the defendant’s general waiver of the right to appeal … .

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 it, or agrees to forgo it as part of a plea bargain … . People v Alleyne, 2019 NY Slip Op 00895, Second Dept 2-6-19

 

, , ,

PLAINTIFF, AFTER FAILING TO ARGUE THAT DEFENDANTS WAIVED THE LACK OF STANDING DEFENSE BEFORE SUPREME COURT, COULD NOT RAISE DEFENDANTS’ WAIVER OF THE DEFENSE FOR THE FIRST TIME ON APPEAL, PLAINTIFF DID NOT DEMONSTRATE STANDING TO COMMENCE THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff did not demonstrate standing to bring the foreclosure action, and, further, could not raise defendant’s waiver of the lack-of-standing defense for the first time on appeal:

The defense of lack of standing in an action to foreclose a mortgage is waived if the defendant does not raise it in a pre-answer motion to dismiss or as an affirmative defense (see CPLR 3018[b]…). Here, in opposition to the plaintiff’s motion for summary judgment and in support of their cross motion to dismiss, the defendants argued that the plaintiff lacked standing to commence this action. The plaintiff, in its “reply . . . in further support of plaintiff’s motion for summary judgment, and in opposition to defendant’s [sic] cross-motion to dismiss,” entirely disregarded the defendants’ waiver of the standing defense. Instead, the plaintiff sought to establish that it had standing to commence the action. Now, having litigated the standing defense on the merits in the Supreme Court—both on the original motion and in opposition to reargument—the plaintiff argues on appeal that the issue of standing was waived. Having neglected to raise that dispositive issue in the Supreme Court, the plaintiff may not raise it for the first time on this appeal … .

The plaintiff also failed, on the merits, to establish prima facie that it had standing to commence the action. The loan servicer’s affidavit, which asserted that the named plaintiff “was in possession of the Note at the time of commencement of this action,” provided no specifics as to the date of delivery or the date of commencement. The plaintiff’s conclusory assertion as to possession on the date of commencement is insufficient to establish standing … . BAC Home Loans Servicing, LP v Alvarado, 2019 NY Slip Op 00584, Second Dept 1-30-19

 

, ,

DEFENSE COUNSEL GAVE DEFENDANT THE WRONG INFORMATION ABOUT THE MAXIMUM SENTENCE SHOULD HE GO TO TRIAL, DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY, EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL APPLIED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined: (1) the plea was not voluntary because defendant was given the wrong information about the possible maximum sentence if he went to trial; and (2) the error is an exception to the preservation requirement for appeal because defendant could not have known of the error at the time of the plea:

The Court of Appeals … has carved out an exception to the preservation doctrine “because of the actual or practical unavailability of either a motion to withdraw the plea’ or a motion to vacate the judgment of conviction,'” in certain instances, reasoning that ” a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge'” … . Moreover, the defendant’s contention that his plea of guilty was not knowing, voluntary, and intelligent survives his valid appeal waiver … . …

Here, the defendant’s plea was not made knowingly, voluntarily, and intelligently. The record demonstrates that the defendant was not presented with legitimate alternatives about the maximum sentence he faced in the event he chose to reject the People’s plea offer and was convicted after trial. … On this record, given the difference between the incorrect maximum aggregate sentence of 3 to 5 years that defense counsel communicated to the defendant, the actual maximum aggregate sentence of 2 to 4 years, and the bargained-for sentence of 1½ to 3 years, the threat of a higher sentence rendered the defendant’s plea involuntary … . People v Keller, 2019 NY Slip Op 00620, Second Dept 1-30-19

 

, , ,

UNWARNED STATEMENTS MADE DURING CUSTODIAL INTERROGATION AND STATEMENTS MADE IN THE ABSENCE OF COUNSEL SHOULD HAVE BEEN SUPPRESSED, DEFENSE COUNSEL’S FAILURE TO OBJECT CONSTITUTED INEFFECTIVE ASSISTANCE, SOME UNPRESERVED APPELLATE ISSUES CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, over a partial dissent, reversed defendant’s bribery and falsely reporting an incident convictions, in the interest of justice, and ordered a new trial. The facts are too complex to fairly summarize here. Defendant was accused of assault by her husband. The police called her to the station where she was interviewed. After she was told she would be placed under arrest she allegedly offered sex and money to the interviewing officer (Officer Persaud) to make the charges go away. The officer wore a wire to record further conversations about the bribery. After defendant was arraigned and represented by counsel, defendant was again interviewed in the back of a police car (by Sargeant Klein and her partner) concerning the alleged bribery. That conversation was also recorded. Statements made during custodial interrogation that were not preceded by Miranda warnings and statements made to police officers in the absence of counsel should not have been admitted. Defense counsel was ineffective for failing to object:

Officer Persaud should have known that in telling the defendant that she needed to come to the precinct station house in connection with his investigation into the allegations her husband had made against her, allegations about which she had already been told she would be arrested, placing her in an interview room, and then confronting her with the allegations and the evidence against her, including the existence of the order of protection, he was reasonably likely to elicit from the defendant an incriminating response … . * * *

… [T]the defendant’s alleged bribery of Officer Persaud and her allegedly false reporting of his sexual misconduct during that same encounter were “so inextricably interwoven in terms of both their temporal proximity and factual interrelationship” as to render unavoidable the conclusion that any interrogation concerning the allegedly false report would inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel… . Furthermore, the police were aware that the defendant was actually represented by an attorney and the interrogation actually entailed an infringement of her constitutional right to counsel by impermissible questioning on the represented crimes … . * * *

… [T]he defendant demonstrated the absence of “a reasonable and legitimate strategy under the circumstances and evidence presented” … for defense counsel’s stipulation to admission of a recording of the entire interview between the defendant and Sergeant Klein and her partner, and his failure to object to Sergeant Klein’s testimony recounting the same interview, or Officer Persaud’s testimony in which he recounted numerous statements made by the defendant, of which the People failed to provide notice as required by CPL 710.30(1)(a). People v Stephans, 2019 NY Slip Op 00473, Second Dept 1-23-19

INEFFECTIVE ASSISTANCE, RIGHT TO COUNSEL

,

THE WAIVER OF APPEAL WAS INVALID, THE STATUTORY REQUIREMENTS FOR THE ORDER OF PROTECTION ISSUED AT SENTENCING WERE NOT MET (SECOND DEPT).

The Second Department, vacating an order of protection issued at sentencing and affirming the conviction, determined defendant’s waiver of his right to appeal was invalid:

… [T]he record does not demonstrate that the defendant understood the nature of the right to appeal and the consequences of waiving it … . The Supreme Court did not provide the defendant with an adequate explanation of the nature of the right to appeal or the consequences of waiving that right … . The court’s explanation was little more than a tautology: “[Y]ou have given up your right to appeal. Which means there will be no appeal with regards to anything in your case, and the only exception to that would be an illegal sentence or some constitutional issue. But basically you have given up your right to appeal. Do you understand?” … . Furthermore, the court’s statements at the plea allocution suggested that waiving the right to appeal was mandatory rather than a right which the defendant was being asked to voluntarily relinquish, and the court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal… .

Although the record on appeal reflects that the defendant signed 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” … . * * *

… [T]the Supreme Court failed to state on the record the reasons for issuing the order of protection at the time of sentencing …  Furthermore, … the court failed to fix the duration of the order of protection … . Under these circumstances, we vacate the order of protection issued at the time of sentencing … . People v Moncrieft, 2019 NY Slip Op 00466, Second Dept 1-23-19

 

,

THE THIRD DEPT EXERCISED ITS INTEREST OF JUSTICE JURISDICTION AND VACATED DEFENDANT’S PLEA BECAUSE HE WAS NOT ADEQUATELY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, exercising its interest of justice jurisdiction, over a two-justice dissent, determined defendant was not adequately informed of the rights he was giving up by pleading guilty:

Defendant contends that his plea was not knowing, voluntary and intelligent because County Court failed to advise him of the constitutional rights he was waiving by pleading guilty. Although defendant failed to preserve this contention for our review through an appropriate postallocution motion … , we nonetheless exercise our interest of justice jurisdiction to take corrective action and reverse the judgment … . …

… [D]uring the abbreviated plea colloquy, County Court briefly advised defendant that, if he were to plead guilty, he would be giving up his “right to a trial, . . . the right to testify at that trial, to call witnesses and to cross-examine the People’s witnesses.” Significantly, County Court did not advise defendant that he had a right to a jury trial or that he would be waiving the privilege against self-incrimination by entering a guilty plea … . Further, the court failed to obtain any assurance that defendant had discussed with counsel the trial-related rights that are automatically forfeited by pleading guilty or the constitutional implications of a guilty plea … .

From the dissent:

… .[W]e do not think that the unpreserved error cited by the majority, standing alone, necessitates this Court exercising its interest of justice jurisdiction to reverse the judgment of conviction as there is nothing compelling about this case that “cries out for fundamental justice beyond the confines of conventional considerations” … . People v Demkovich, 2019 NY Slip Op 00326, Third Dept 1-17-19

 

,

THIRD DEPT DECLINED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO REVIEW WHETHER DEFENDANT WAS ADEQUATELY INFORMED OF THE RIGHTS SHE WAS GIVING UP BY PLEADING GUILTY, TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, declined to exercise its interest of justice jurisdiction to review whether defendant was adequately informed of the rights she was giving up by pleading guilty:

… [W]e find that this is not a proper matter for the exercise of our interest of justice jurisdiction. Defendant has a lengthy criminal history and admitted at the time of the plea that she was guilty of possessing heroin with the intent to sell it. Defendant was represented by counsel and entered into a plea agreement with a favorable sentence. Although defendant later filed a motion to withdraw her plea, she elected to withdraw the motion after being granted an adjournment and conferring with counsel. Significantly, defendant has since served her negotiated sentence and been released from custody; however, if this conviction is reversed, defendant once again faces prosecution for the original charge, which, if convicted, carries a greater sentencing range … . …

From the dissent:

Our review of the plea colloquy reveals that County Court engaged in an extremely limited exchange with defendant, advising her only that, by pleading guilty, she would forever relinquish her “right to go to trial, the right to testify, to call witnesses, [and to] cross-examine the People’s witness[es].” Critically, there was no discussion of the privilege against self-incrimination, the right to be tried by a jury or whether defendant had conferred with counsel and understood the constitutional rights that she was automatically waiving by pleading guilty … . People v Glover, 2019 NY Slip Op 00325, Third Dept 1-17-19

 

,

FAMILY COURT SHOULD NOT HAVE REVIEWED THE SUPPORT MAGISTRATE’S NONFINAL ORDER AND GRANTED FATHER’S OBJECTIONS, FATHER’S ARGUMENT THAT HE WOULD NEED TO PAY ATTORNEY’S FEES AND SPEND TIME AWAY FROM WORK TO LITIGATE THE MATTER DID NOT RISE TO THE LEVEL OF IRREPARABLE HARM NEEDED TO JUSTIFY A REVIEW OF A NONFINAL ORDER (SECOND DEPT).

The Second Department, reversing Family Court, determined that father’s objections to the support magistrate’s nonfinal order should have been denied and explained the relevant criteria:

Pursuant to Family Court Act § 439(e), “[s]pecific, written objections to a final order of a support magistrate may be filed by either party with the court within thirty days after receipt of the order.” “[O]bjections from nonfinal orders made by a Support Magistrate are typically not reviewed unless they could lead to irreparable harm” … . Here, the father’s claim that he would be forced to incur attorney fees and spend time away from work litigating a case that would ultimately be dismissed does not rise to the level of irreparable harm  … . Therefore, the Family Court should have denied the father’s objections to the Support Magistrate’s nonfinal order. Matter of Tobing v May, 2019 NY Slip Op 00286, Second Dept 1-16-19

 

, ,

AWARDING FATHER SOLE LEGAL CUSTODY DID NOT HAVE A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, MOTHER’S PETITION FOR SOLE LEGAL CUSTODY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined that awarding sole legal custody to father did not have a sound and substantial basis in the record and mother’s petition for sole legal custody should have been granted:

“Findings of the Family Court which have a sound and substantial basis in the record are generally entitled to great deference on appeal because any custody determination depends to a great extent on the court’s assessment of the credibility of the witnesses and the character, temperament, and sincerity of the parties”… . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record” … .

Here, the Family Court’s determination awarding the father sole legal and physical custody of the child does not have a sound and substantial basis in the record. Contrary to the court’s conclusion, the parties had not been sharing custody of the child equally. Instead, the record reflects that the mother had been the child’s primary caregiver for the majority of his life until the court granted the father’s petition and that, at the time of the hearing, the father had the child on certain weekends. The evidence in the record also demonstrates that the court failed to take into consideration the custody arrangement in place at the time of the hearing, or even the 50/50 arrangement which was requested by the father during the proceeding.

Moreover, the record demonstrates that the mother had taken a proactive role in the child’s well being and development, developing well-thought-out plans to address the child’s issues regarding medical care, schooling, and socialization … . At the time of the hearing, the father had no concrete plans for the child’s education, medical care, or social development. Matter of Lintao v Delgado, 2019 NY Slip Op 00125, Second Dept 1-9-19

 

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