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TERMINATION OF MOTHER’S SUPERVISED VISITATION IS A “DRASTIC REMEDY” WHICH MUST BE SUPPORTED BY “SUBSTANTIAL PROOF” CONTINUED VISITATION “WOULD BE HARMFUL TO THE CHILD;” THE PROOF HERE DID NOT MEET THOSE CRITERIA (THIRD DEPT). ​

The Third Department determined the evidence did not support the “drastic remedy” of terminating mother’s supervised visitation with the child:

Although Family Court found that both the mother and the father “testified credi[]bly that relations between the mother and child ha[d] deteriorated” — a determination that was borne out by the testimony — the “denial of visitation to a noncustodial parent is a drastic remedy” … and the record does not contain “substantial proof” that continued supervised visitation “would be harmful to the child” … . We are mindful of the father’s testimony that the child had returned home from a visit with bent glasses and marks on his leg. However, Family Court did not make any factual findings regarding these allegations, and the maternal grandfather — who drove the child home from that visit — denied ever observing the child’s glasses to be “messed up” or witnessing marks on the child’s legs. On this record, there is an insufficient basis to conclude that the bent glasses and marks observed by the father were caused by the mother’s conduct. Moreover, while the mother herself acknowledged that there were issues in the relationship between her and the child, she indicated that this stemmed from the child’s difficult behavior and her concern about the child making racist comments in front of his three-year-old half-sibling. There was also testimony regarding the positive aspects of their relationship and the maternal grandfather, who did all the driving, corroborated that the child generally seemed content during visits. Notwithstanding the father’s testimony to the contrary, we conclude that the evidence presented was not sufficiently compelling and substantial to justify a wholesale suspension of the mother’s supervised visitation … . Matter of William V. v Christine W., 2022 NY Slip Op 04199, Third Dept 6-3022

Practice Point: The termination of supervised visitation is a “drastic remedy” which requires “substantial proof” continued visitation “would be harmful to the child.” The proof was lacking in this case.

 

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HERE THE DEFENDANT, IN HIS MOTION TO VACATE HIS CONVICTION, RAISED ISSUES ABOUT THE EXTENT OF HIS COOPERATION AND WHETHER NEW DEFENSE COUNSEL ADEQUATELY INVESTIGATED THE PROSECUTOR’S WITHDRAWAL OF THE COOPERATION AGREEMENT; THE PEOPLE’S RESPONSE DID NOT ADDRESS THESE SUBSTANTIVE ISSUES; THEREFORE COUNTY COURT SHOULD HAVE HELD A HEARING (THIRD DEPT).

The Third Department, reversing Court Court, determined defendant had raised several issues in the motion to vacate the conviction which were not addressed by the People’s response. Some of the issues were corroborated in an affidavit from defendant’s prior attorney. Therefore a hearing was necessary:

… [W]e agree with defendant that he is entitled to a hearing on whether counsel was ineffective in connection with defendant’s alleged failure to fully cooperate under the terms of the 2016 cooperation agreement. A hearing is required on a CPL article 440 motion “if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief” … . In that regard, defendant averred that he consistently gave a truthful account of the burglary and had fully cooperated in the prosecution of [a codefendant] as required by the 2016 cooperation agreement, and his motion papers included a September 2016 supporting deposition from his sister and an affidavit from [his former attorney] to support those claims. Defendant also alleged specific deficiencies in counsel’s performance, namely, that counsel failed to investigate whether the Special Prosecutor’s withdrawal of the 2016 cooperation agreement was impermissibly “premised on bad faith, invidiousness, . . . dishonesty” or unconstitutional considerations and, moreover, failed to discuss the possibility of demanding a hearing on that issue with defendant … . People v Buckley, 2022 NY Slip Op 04197, Third Dept 6-30-22

Practice Point: If a motion to vacate the conviction raises substantive issues which are corroborated is some way (here with an affidavit by defendant’s prior attorney), and these substantive issues are not adequately dealt with in the People’s responding papers, a hearing must be held.

 

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DEFENDANT WAS CONCERNED HIS INCARCERATED BROTHER WAS BEING HARASSED BY CORRECTIONS OFFICERS; HE CALLED THE DEPARTMENT OF CORRECTIONS AND THREATENED TO “BLOW AN OFFICER’S HEAD OFF” “IF THEY TOUCH MY BROTHER;” DEFENDANT’S “MAKING A TERRORISTIC THREAT” CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).

The Third Department, reversing defendant’s “making a terroristic threat” conviction, determined the conviction was against the weight of the evidence, Defendant’s brother was incarcerated. Defendant was concerned that his brother was being harassed by corrections officers. Defendant allegedly called the Department of Corrections and Community Supervision and said he would “blow an officer’s head off” “if they touch my brother:”

…”[A] person is guilty of making a terroristic threat when[,] with intent to . . . affect the conduct of a unit of government by murder, . . . he or she threatens to commit . . . a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense” (Penal Law § 490.20 [1]). Penal Law article 490 was enacted following the September 11, 2001 attacks and was “specifically designed to combat the evils of terrorism” … . Accordingly, “[t]he concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act” …  ….

… [T]he evidence fails to establish that defendant “cause[d] a reasonable expectation or fear of the imminent commission” of an offense under the factual circumstance presented here (Penal Law § 490.20 [1]). Neither the first investigator nor the supervisor took any actions to warn the correctional facility or any other agency or individuals of the threat. While a notice was eventually issued, this was not done until well after the initial threat was made. None of the witnesses provided any testimony that they or anyone else had a reasonable expectation or fear that the threat would be imminently carried out, nor did their actions indicate any such belief. People v Santiago, 2022 NY Slip Op 04196, Third Dept 6-30-22

Practice Point: Here defendant’s statement he would “blow an officer’s head off” “if they touch my brother” did not cause the investigators who heard the statement to expect or fear the imminent commission of the offense, which is an element of “making a terroristic threat.” Defendant’s conviction was therefore against the weight of the evidence. The decision cautions against interpreting the “terroristic threat” statute loosely.

 

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THE UNEXPLAINED FAILURE TO SEE A VEHICLE BEFORE COLLIDING WITH IT, WITHOUT MORE, DOES NOT RISE TO THE LEVEL OF CRIMINAL NEGLIGENCE; THE EVIDENCE OF CRIMINAL NEGLIGENCE WAS LEGALLY INSUFFICIENT (THIRD DEPT). ​

The Third Department, reversing defendant’s criminally negligent homicide conviction and dismissing the indictment, determined defendant’s failure to see the victim’s vehicle on the side of the highway until it was too late did not rise to the level of criminal negligence (legally insufficient evidence). The victim was in a pickup truck with a sign on the back warning drivers that roadwork was being done ahead:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he [or she] causes the death of another person” … . “A defendant acts with criminal negligence in this context when the defendant ‘fails to perceive a substantial and unjustifiable risk’ that death will result” … . “That ‘risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation'” … . “[C]riminal liability cannot be predicated on every act of carelessness resulting in death[;] . . . the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and that . . . carelessness must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” … . As such, a defendant must “engage[] in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of death” … . Importantly, “nonperception of a risk, even if death results, is not enough” … . …

… [T]he Court of Appeals has held that “[t]he unexplained failure of a driver to see the vehicle with which he [or she] subsequently collided does not, without more, support a conviction for the felony of criminally negligent homicide” … . People v Faucett, 2022 NY Slip Op 04195, Third Dept 6-30-22

Practice Point: This case includes a detailed description of the criteria for criminal negligence. In the context of a traffic accident, the defendant’s unexplained failure to see the other vehicle until it was too late, without more, does not constitute criminal negligence.

 

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WHEN HER CHILDREN WERE ASLEEP, MOTHER WENT INTO THE BATHROOM, DRANK BRANDY, AND FELL ASLEEP; THERE WAS INSUFFICIENT EVIDENCE OF A THREAT OF IMMINENT HARM TO THE CHILDREN OR THAT THE CHILDREN SUFFERED ANY EMOTIONAL HARM; NEGLECT FINDING REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, over a dissent, determined the neglect finding against mother was not supported by evidence of a threat of imminent harm to the children. While the children were sleeping, mother went into the bathroom, drank brandy and fell asleep:

… [W]e find that petitioner failed to establish that respondent’s ill-advised conduct placed the children at risk of anything beyond, “at most, possible harm” … . To this point, respondent testified that her youngest children were in age-appropriate sleeping arrangements that presented no inherent danger resulting from respondent’s inebriated state … . Further, although there was a period when the children were no longer supervised by respondent when she was taken to the hospital, the testimony reveals that shelter staff were watching the children until petitioner’s supervisor arrived and took custody of them, and there is no indication that they were in any danger during this period of time … .

… [T]he record is devoid of any proof that the children were upset or suffered any emotional harm at any point during the incident … . Matter of Hakeem S. (Sarah U.), 2022 NY Slip Op 04214, Third Dept 6-30-22

Practice Point: Children are not neglected unless there is a threat of imminent harm or actual harm. Here mother went into the bathroom, drank brandy and fell asleep while her children were asleep. The neglect finding was reversed.

 

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THE EVIDENCE SUPPORTED FATHER’S PETITION FOR A MODIFICATION OF CUSTODY, REQUIRING A “BEST INTERESTS OF THE CHILD” HEARING; THE APPELLATE COURT ORDERED A “BEST INTERESTS” HEARING, INCLUDING A LINCOLN HEARING, AND ORDERED THE APPOINTMENT OF A NEW ATTORNEY FOR THE CHILD BECAUSE THE PRESENT ATTORNEY HAD EXPRESSED AN OPINION ON THE APPROPRIATE CUSTODY ARRANGEMENT (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined father had demonstrated a change in circumstances sufficient to support a modification of the custody arrangement. The original custody order provided that the 50/50 custody sharing would change to mother’s having primary custody when the child started school. Father explained that mother’s primary custody was necessary because his work prevented him from taking the child to and from school. However, father had since changed jobs and moved to the school district where the child attended to school. The Third Department ordered a “best interests of the child” hearing, including a Lincoln hearing, and ordered the appointment of a different attorney for the child because the present attorney had expressed an opinion about the appropriate custody arrangement:

“A party seeking to modify a prior order of custody must show that there has been a change in circumstances since the prior order and, then, if such a change occurred, that the best interests of the child would be served by a modification of that order” … . According to the father’s petition, the sole reason for the parties’ initial agreement to decrease the father’s parenting time during the school year was because, at the time of the agreement, the father’s work schedule prevented him from transporting the child to and from school. According to the father’s hearing testimony, that circumstance had since changed. The father testified that, while the 50/50 custody arrangement was still in effect, he obtained a new job with a higher salary and more flexible hours, and bought a house in what was at that time the child’s school district, such that the school transportation issue had been alleviated. Matter of Thomas SS. v Alicia TT., 2022 NY Slip Op 04213, Third Dept 6-30-22

Practice Point: This case is an example of evidence which is deemed sufficient to support a modification of custody such that a “best interests of the child” hearing should be held. Here, as part of the “best interests” fact-finding, the Third Department ordered that a Lincoln hearing be held and that a different attorney for the child be appointed because the present attorney had expressed an opinion on custody.

 

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AFTER TRIGGERING A SECURITY ALARM AT A SPORTING GOODS STORE, DEFENDANT WAS DETAINED IN THE STORE FOR HALF AN HOUR IN THE PRESENCE OF POLICE OFFICERS WHOSE QUESTIONS WERE NOT CONFINED TO THE PETIT LARCENY INVESTIGATION RE: AMMUNITION, BUT RATHER RELATED TO DEFENDANT’S POSSESSION OF FIREARMS; DEFENDANT’S UNWARNED STATEMENTS SHOULD HAVE BEEN SUPPRESSED; CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the questioning by the police when defendant was still in a sporting goods store where he allegedly attempted to steal ammunition constituted custodial interrogation in the absence of the Miranda warnings. The statements made by the defendant at the sporting goods store should have been suppressed:

The entire interaction at the sporting goods store was captured by the various body cameras worn by the police involved. Viewing same, it is evident that, throughout most of the interaction, four police officers were present at the sporting goods store, with at least one officer positioned between defendant and the exit. More importantly, shortly after the police arrived, defendant had been told to empty his pockets and place all of his personal property on the counter. Defendant did so. While being detained by the police, defendant asked the police multiple times if he could retrieve his possessions. The police denied each of these requests. … Additionally, the questions posed by the police to defendant exceeded that necessary for investigation. Many of their inquiries were not limited to the petit larceny, the allegation in question, but instead focused on firearms that defendant may have possessed, their location, caliber and defendant’s intent as to his usage of same. With the benefit of viewing the interaction between the police and defendant, and considering all the circumstances involved, we cannot say that a reasonable person would have felt free to leave … . People v Abdullah, 2022 NY Slip Op 04045, Third Dept 6-23-22

Practice Point: Defendant triggered a security alarm in a sporting goods store when he attempted to steal ammunition. He was detained by police in the store for half an hour and was asked questions about his possession of firearms. Because the questions exceeded the scope of the petit larceny investigation and were not preceded by the Miranda warnings, defendant’s statements should have been suppressed. His conviction was reversed.

 

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FAMILY COURT HELD A HEARING IN THE MODIFICATION OF CUSTODY PROCEEDING BUT DID NOT STATE IN ITS DECISION THE FACTS RELIED UPON TO DENY THE PETITION; THE APPELLATE DIVISION REVIEWED THE EVIDENCE, REVERSED FAMILY COURT, AND GRANTED MOTHER’S PETITION (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition to modify custody should have been granted. Family Court held a hearing but did not, in its decision, state the facts relied upon to deny the petition. Because the record was sufficient, the Second Department exercised its authority to review the evidence and make its own determination:

… [T]o facilitate effective appellate review, the hearing court “must state in its decision ‘the facts it deems essential’ to its determination” … .

… [W]hile the Family Court stated in its decision that the allegations in the mother’s petition “largely stem from the difficulties that the parties have in co-parenting which predate her petition,” and that “both parties contribute to continuing the conflict between one another,” the court did not identify the facts adduced at the hearing that supported its denial of the mother’s petition. … . …

The evidence at the hearing showed that, on numerous occasions after the issuance of the 2018 custody order, the father, in the child’s presence, denigrated the mother and behaved inappropriately toward her … . The father consistently failed to make the child available for telephone and video calls with the mother as required by the original custody order, routinely ignored the mother’s attempted communications with the child, and repeatedly failed to adhere to the court-ordered parental access schedule … . The hearing testimony established that the father not only refused to foster a good relationship between the mother and the child—he expressly testified that he did not believe he had an obligation to do so—but actively sought to thwart such a relationship. “Parental alienation of a child from the other parent is an act so inconsistent with the best interests of the child[ ] as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent” …

… [T]he father demonstrated a lack of interest in the child’s education and development by, among other things, refusing to have the child evaluated for learning disabilities or treated for his speech impediment … . … [T]he father failed to respond to the mother’s inquiries about the child’s health, education, and safety. Matter of Smith v Francis, 2022 NY Slip Op 04026, Second Dept 6-22-22

Practice Point: After a hearing on a petition to modify custody, Family Court, in its decision, must, but did not, state the facts relied upon in making its ruling denying the petition. The appellate division exercised its authority to review the evidence and make its own determination (reversing Family Court and granting mother’s petition for residential custody).

 

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APPELLANT, 16, IN THIS JUVENILE DELINQUENY PROCEEDING, WAS BEING INTERROGATED ABOUT A ROBBERY WHEN HE DRANK WATER FROM A DISPOSABLE CUP; THE INTERROGATING OFFICER SENT THE CUP FOR DNA ANALYSIS; THERE WAS NO INVESTIGATORY PURPOSE FOR THE DNA COLLECTION; APPELLANT’S MOTION TO EXPUNGE THE DNA EVIDENCE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, over a dissent, reversing Family Court, determined appellant’s motion to expunge all DNA evidence collected from him in this juvenile delinquency proceeding should have been granted. When appellant,16, was being interrogated by the police about a robbery, he was given a disposable cup from which he drank water. The cup was then sent by the interrogating officer for DNA analysis. No DNA had been collected from the robbery scene, so there was no investigatory purpose for collection of appellant’s DNA:

A juvenile delinquency adjudication, just as a youthful offender adjudication, is not a criminal conviction and a juvenile delinquent should not be denominated a criminal by reason of such adjudication … . A juvenile delinquent is not and should not be afforded fewer adjudication protections than a youthful offender or an adult in the equivalent circumstances … . Family Court, therefore, has the discretion to order the expungement of appellant’s DNA and any other documents related to the testing of his DNA sample. * * *

It has not been established that appellant purposefully divested himself of the cup or his DNA, thereby relinquishing his expectation of privacy. Nor has it been established that he waived, impliedly or explicitly, his constitutional rights to that expectation. * * *

DNA evidence obtained after an arrest should be material and relevant and should have a link to the charges for which the individual is arrested. There must be an articulable basis to obtain this DNA evidence and a correlation to the investigation or prosecution of the charged offense. That articulable basis to obtain appellant’s DNA is lacking here. * * *

Under the totality of the circumstances, maintaining appellant’s DNA profile in OCME’s database in perpetuity is completely incompatible with the statutory goal and would result in a substantial injustice to the appellant. Matter of Francis O., 2022 NY Slip Op 03969, First Dept 6-16-22.

Practice Point: Here the appellant was 16 when he was interrogated by the police. He drank water from a paper cup. The interrogating officer sent the cup for DNA analysis. There was no investigative purpose for the DNA collection. The appellant did not abandon the cup and did not waive his privacy interest in it. His constitutional rights were therefore violated by the collection of his DNA and he was entitled to expungement of the DNA evidence.

 

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THE INTOXICATED DEFENDANT’S DRIVING WHEN HE FLED FROM THE POLICE, WHILE RECKLESS, DID NOT DEMONSTRATE DEPRAVED INDIFFERENCE; DEPRAVED INDIFFERENCE MURDER CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; CONVICTION REDUCED TO MANSLAUGHTER (THIRD DEPT). ​

The Third Department, reducing defendant’s conviction from depraved indifference murder to manslaughter, over a dissent, determined that the intoxicated defendant’s driving when fleeing from the police did not evince a complete disregard for the safety of others. Therefore the depraved indifference murder conviction was against the weight of the evidence:

… [T]he credible evidence at trial made clear that defendant was extremely intoxicated, but his driving prior to police pursuit demonstrated that he was aware of his surroundings, obeyed multiple traffic signals and responded to the alerts of other drivers. Although he was traveling at an exceptionally high rate of speed during the pursuit, he did so “on a roadway designed to accommodate greater rates of speed than residential roads, at an hour when lighter traffic conditions predominated” … , and there is no evidence that he failed to abide by any traffic signals while he fled or that any vehicles were forced to pull over or move out of his way … . According deference to the jury’s credibility determinations, defendant did partially enter the lane of oncoming traffic for brief periods of time, but such “episodic” conduct stands in stark contrast to cases where the defendant traveled in an oncoming lane “as part of a deadly game” … . Defendant in fact largely chose to evade police not by weaving in and out of the oncoming lane but instead by driving on a wide, paved shoulder, and, even if his “attempted escape [was] carried out in a reckless manner,” he may “simultaneously intend to flee police and avoid striking other cars” … . “No contact occurred between [defendant’s] vehicle and any other vehicle before the accident” … , and the limited evidence of his proximity to other vehicles prior to the collision falls short of establishing the sort of “narrow[] miss[es]” the disregard of which could be some evidence of depraved indifference … . People v Williams, 2022 NY Slip Op 03945, Third Dept 6-16-22

Practice Point: Here the intoxicated defendant acted recklessly in fleeing from the police, but his driving did not evince a depraved indifference to the safety of other drivers. For the most part defendant followed the rules of the road and avoided other vehicles. Therefore the depraved indifference murder conviction was not supported by the weight of the evidence. Conviction reduced to manslaughter.

 

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