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FATHER’S PETITION TO MODIFY CUSTODY TO ALLOW HIS RELOCATION TO NORTH CAROLINA SHOULD NOT HAVE BEEN GRANTED; CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s petition to modify custody to allow his relocation to North Carolina should not have been granted:

In its decision, the court considered the relevant Tropea factors but erred in applying those factors to the facts and circumstances in the case at bar. Contrary to the court’s determination, the father “failed to establish that the child’s life would be enhanced economically, emotionally and educationally by the proposed relocation” … . While the father established that he will enjoy greater economic job opportunities in North Carolina, those nominal financial gains will be negated by the greater cost of living in the area of North Carolina where he will be relocating. Additionally, as noted by the court, the father had unrealistic goals for housing in North Carolina. Notably, the father testified that he was presently paying monthly rent of $900 for a home in Olean, New York, but wanted to purchase a home in North Carolina for between $200,000 and $250,000. He acknowledged that he could not afford a home within that price range on his own and would need the financial assistance of family, his employer, and his fiancée. There is no evidence in the record, however, that anyone had committed to providing that needed assistance or had the financial ability to do so. The father also failed to establish that the child would receive a better education in North Carolina inasmuch as there is no evidence in the record comparing the schools in North Carolina to those in Olean, New York … . Furthermore, the father admitted that he had “zero” family living in North Carolina. On the other hand, the father’s mother currently lives in Olean, New York, and the father’s aunt lives nearby in Wellsville, New York. The maternal grandmother, great-grandmother and great-grandfather all live in Olean, New York. The father therefore failed to establish that he and the child would receive similar support residing in North Carolina … . In our view, the only factor that fully supported the father’s request for relocation was a “fresh start,” away from Olean, New York, where he and the mother struggled with an opiate addiction. That factor, standing alone, is insufficient to warrant relocation … . Gasdik v Winiarz, 2020 NY Slip Op 06918, Fourth Dept 11-20-20

 

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MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY TO ALLOW RELOCATION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s petition for a modification of custody to accommodate relocation should not have been dismissed without holding a hearing:

… [T]he mother alleged that she had specific employment advancement opportunities at her job in Monroe County, and “economic necessity . . . may present a particularly persuasive ground for permitting the proposed move” … . In addition, the mother alleged that the relocation would enhance the child’s extracurricular activities, a factor that may support a relocation … . In addition, the Attorney for the Child indicated that the child favored the relocation, another factor that may support a relocation petition … . Consequently, the petition sufficiently alleged that the relocation would be in the child’s best interests … , and the court erred in dismissing it on the ground that it did not. Finally, to the extent that the decision indicates that the court dismissed the petition on the ground that the mother failed to allege a sufficient change in circumstances, that was error … . Matter of Betts v Moore, 2020 NY Slip Op 06907, Fourth Dept 11-20-20

 

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POLICE OFFICER’S OPINION A HOMICIDE HAD BEEN COMMITTED AND THE VICTIM’S MOTHER’S TESTIMONY ABOUT THE VICTIM’S PERSONAL BACKGROUND SHOULD NOT HAVE BEEN ADMITTED; OPINION ISSUE REVIEWED IN THE INTEREST OF JUSTICE; MANSLAUGHTER CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s manslaughter conviction, determined the investigating officer’s opinion that the death was a homicide and the victim’s mother’s testimony about the personal background of the victim should not have been admitted:

Defendant’s contention that County Court erred in allowing an investigating police officer to testify regarding his opinion that a homicide was committed in this case is preserved for our review only in part … . To the extent that defendant’s contention is unpreserved, we exercise our power to review it as a matter of discretion in the interest of justice … , and we conclude that the court erred in admitting that testimony because it ” ‘usurp[ed] the jury’s fact-finding function’ ” … .

We further agree with defendant that the court erred in permitting the victim’s mother to testify regarding the victim’s personal background, including various aspects of the victim’s life and his family relationships. It is well settled that “testimony about [a] victim[‘s] personal background[] that is immaterial to any issue at trial should be excluded” … and, here, the testimony of the victim’s mother regarding the victim’s personal background was not relevant to a material issue at trial. People v Salone, 2020 NY Slip Op 06903, Fourth Dept 11-20-20

 

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ALTHOUGH THE DEFENDANT VIOLATED THE ORDER OF PROTECTION BY GOING INSIDE THE PROTECTED PERSON’S HOUSE, THERE WAS INSUFFICIENT EVIDENCE OF ANY CONTACT WITH THE PROTECTED PERSON; CRIMINAL CONTEMPT FIRST CONVICTION REDUCED TO CRIMINAL CONTEMPT SECOND (FOURTH DEPT).

The Fourth Department, reducing the criminal contempt first conviction to criminal contempt second, determined the evidence was legally insufficient. The defendant violated the order of protection by going inside the protected person’s house but there was insufficient evidence of any contact between the defendant and the protected person:

… [T]he People adduced legally insufficient evidence that defendant intentionally violated “that part” of the protective order that required him to “stay away from the [protected] person,” as required for a conviction for criminal contempt in the first degree under Penal Law § 215.51 (c) … . Rather, the evidence proves only that defendant committed the lesser included offense of criminal contempt in the second degree under section 215.50 (3) by going to the protected person’s house, and we therefore modify the judgment accordingly … . People v Crittenden, 2020 NY Slip Op 06901, Fourth Dept 11-20-20

 

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THE UNIQUE PROOF REQUIREMENTS FOR CRIMINAL CONTEMPT FIRST DEGREE FOR VIOLATION OF AN ORDER OF PROTECTION WERE NOT MET; THE FACT THAT DEFENDANT STIPULATED TO THE ACCURACY OF AN INACCURATE SPECIAL INFORMATION ABOUT A PRIOR CRIMINAL CONTEMPT CONVICTION DOES NOT REQUIRE A DIFFERENT RESULT (FOURTH DEPT). ​

The Fourth Department reduced the criminal contempt first degree convictions to criminal contempt second degree for violation of an order of protection, explaining the proof requirements for criminal contempt first were not met and noting that defendant’s stipulation to an inaccurate special information re a predicate offense does not require a different result:

The People were required to establish as an element of the offense of criminal contempt in the first degree that defendant had been previously convicted, within the preceding five years, of the crime of aggravated criminal contempt or criminal contempt in the first or second degree “for violating an order of protection” that “require[d] the . . . defendant to stay away from the person or persons on whose behalf the order was issued” (Penal Law § 215.51 [c]). Thus, this is a situation where the enhancing element of an offense is not merely the existence of a prior conviction, but also the existence of additional facts related to that prior conviction … . The special information filed by the People to assert the existence of the predicate conviction (see CPL 200.60 [1], [2]) alleges only that defendant previously had been convicted of the crime of criminal contempt in the second degree, without specifying whether that previous conviction involved the violation of an order of protection or of any stay-away provision therein … .

The fact that defendant stipulated to the accuracy of the imprecise special information did not relieve the People of their burden of establishing the predicate conviction and related facts as part of their case-in-chief … . People v Barrett, 2020 NY Slip Op 06899, Fourth Dept 11-20-20

 

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THE PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO CROSS EXAMINE THE DEFENSE EXPERT USING DECEDENT’S HUSBAND’S DEPOSITION IN THIS NEGLIGENCE AND PUBLIC-HEALTH-LAW VIOLATION CASE; THE DECEDENT’S HUSBAND, A NONPARTY, WAS AVAILABLE TO TESTIFY; THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN SET ASIDE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff should not have been allowed to cross-examine the defense expert using the deposition of decedent’s husband, who was available to testify. The defense motion to set aside the verdict in this negligence and Public-Health-Law violation case should have been granted:

Supreme Court erred in allowing plaintiff to cross-examine a defense expert using the deposition of decedent’s husband, a nonparty. CPLR 3117 limits the use of a nonparty’s deposition at trial to either the impeachment of that nonparty as a witness … , or for “any purpose against any other party” in case of the nonparty’s unavailability at trial … . Here, plaintiff was not using the husband’s deposition testimony to impeach the husband’s own trial testimony, and the husband was available and testified at trial. Contrary to plaintiff’s assertion, CPLR 4515 does not permit a party to cross-examine an expert with all the materials that the expert reviewed in formulating his or her opinion, regardless of the independent admissibility of those materials … . “That statute provides only that an expert witness may on cross-examination ‘be required to specify the data and other criteria supporting the opinion’ ” … . Because the testimony pertained directly to the central issue to be resolved by the jury, i.e., the quality of care that decedent received, the error was not harmless … . Williams v Ridge View Manor, LLC, 2020 NY Slip Op 06894, Fourth Dept 11-20-20

 

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DEFENDANT SHOULD HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER RE TWO COUNTS OF CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE, WHICH ARE NOT VIOLENT FELONIES (FOURTH DEPT).

The Fourth Department determined the sentences for two counts of criminal possession of a weapon third degree, D felonies, were illegal:

… [T]he determinate terms of incarceration of seven years imposed on counts 2 and 10 of the indictment, for criminal possession of a weapon in the third degree, class D felonies, are illegal. Those crimes are not violent felonies (see generally Penal Law § 70.02 [1] [c]), and therefore, the court should have sentenced defendant as a second felony offender on those counts and imposed indeterminate terms of incarceration (see § 70.06 [3] [d]; [4] [b]). Furthermore, inasmuch as defendant must be sentenced to indeterminate terms of incarceration, he is not subject to a period of postrelease supervision on those counts (see § 70.45 [1 …). People v Lovette, 2020 NY Slip Op 06892, Fourth Dept 11-20-20

 

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THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF A PRIOR UNCHARGED SHOOTING; DEFENSE COUNSEL DID NOT OPEN THE DOOR FOR THAT EVIDENCE; THE PROSECUTOR SHOULD NOT HAVE BEEN ALLOWED TO TREAT THE PEOPLE’S WITNESSES AS HOSTILE WITNESSES; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of attempted murder and ordering a new trial, determined evidence of a prior uncharged shooting should not have been admitted and the prosecutor should not have been allowed to cross-examine the People’s witnesses as hostile witnesses:

County Court erred by permitting the prosecutor to present evidence of a prior uncharged shooting under the theory that defense counsel opened the door to such evidence … . …

… [T]he ‘opening the door’ theory does not provide an independent basis for introducing new evidence on redirect; nor does it afford a party the opportunity to place evidence before the jury that should have been brought out on direct examination” … . Instead that “principle merely allows a party to explain or clarify on redirect matters that have been put in issue for the first time on cross-examination, and the trial court should normally exclude all evidence which has not been made necessary by the opponent’s case in reply” … . * * *

The prosecutor … assumed the risk of the adverse testimony by “calling the witness[es] . . . in the face of the forewarning” [about what they would say]. … [A]t the time of the relevant questioning, the court had not granted the prosecutor permission to treat either witness as hostile … . … [T]he prosecutor improperly “use[d the] prior statement[s] for the purpose of refreshing the recollection of the witness[es] in a manner that disclose[d their] contents to the trier of the facts” (CPL 60.35 [3]). People v Sylvester, 2020 NY Slip Op 06891, Fourth Dept 11-20-20

 

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TOWN PROCEEDINGS ABOUT WHETHER THE TOWN WAS OBLIGATED TO PLOW THE ROAD LEADING TO PETITIONER’S PROPERTY WAS NOT A “QUASI-JUDICIAL” PROCEEDING AND THEREFORE THE STANDARD OF REVIEW WAS NOT “SUBSTANTIAL EVIDENCE;” THE STANDARD IS WHETHER THE DETERMINATION WAS ARBITRARY AND CAPRICIOUS OR AFFECTED BY AN ERROR OF LAW (FOURTH DEPT).

The Fourth Department determined the the town was obligated to plow the road leading to the petitioner’s property. The decision has a discussion of the evidentiary standards for review of an Article 78 proceeding:

With respect to this proceeding, … “the substantial evidence standard of review does not apply to the administrative decision at issue, since it was made after [an] informational public hearing[], as opposed to a quasi-judicial evidentiary hearing” … . “Evidentiary hearings that are constitutionally required and have some of the characteristics of adversary trials, including cross-examination, result in ‘quasi-judicial’ determinations that are subject to article 78 review in the nature of certiorari, where the ‘substantial evidence’ inquiry is applicable” (… see CPLR 7803 [4]). “In a mandamus to review proceeding, however, no quasi-judicial hearing is required; the petitioner need only be given an opportunity ‘to be heard’ and to submit whatever evidence he or she chooses and the agency [or body] may consider whatever evidence is at hand, whether obtained through a hearing or otherwise. The standard of review in such a proceeding is whether the agency [or body] determination was arbitrary and capricious or affected by an error of law” … . Matter of Weikel v Town of W. Turin, 2020 NY Slip Op 06890, Fourth Dept 11-20-20

 

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FATHER AND MOTHER SUBMITTED INADMISSIBLE EVIDENCE TO SUPPORT THEIR SUMMARY JUDGMENT MOTIONS ON THE ISSUE WHETHER THE CHILDREN WERE CONSTRUCTIVELY EMANCIPATED; FATHER’S MOTION FOR SUMMARY JUDGMENT ON HIS PETITION TO TERMINATE HIS CHILD SUPPORT OBLIGATIONS WAS PROPERLY DENIED BUT MOTHER’S PETITION FOR SUMMARY JUDGMENT DISMISSING FATHER’S PETITION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s motion for summary judgment on his petition to terminate his child support obligations based on the children’s constructive emancipation was properly denied, and mother’s motion for summary judgment dismissing father’s petition should not have been granted. The basis for both rulings was the inadmissible evidence submitted by father and mother:

… [W]e conclude that the father did not meet his initial burden on his motion of establishing that their refusal to visit with him was unjustified … . Inasmuch as the father’s own submissions suggest that the subject children did not want to visit him due to their purported knowledge of the sex abuse allegations, his submissions failed to eliminate all material issues of fact … . Indeed, the father failed to establish that his behavior “was not a primary cause of the deterioration in his relationship with [the subject] children” … . Thus, we conclude that the court properly denied his motion.

We also conclude that the court should not have granted that part of the mother’s motion seeking summary judgment dismissing the petition. The court erred in relying on the unsworn letters from the subject children’s psychologist because they were not in admissible form … . Without the letters from the children’s psychologist, we conclude that the mother failed to meet her initial burden on her motion of establishing that the children were justified in abandoning the father by refusing to attend visitation. Like the father, the mother did not submit any admissible evidence establishing the reasons for the children’s decision not to visit the father. We therefore modify the amended order accordingly. Matter of Timothy M.M. v Doreen R., 2020 NY Slip Op 06886, Fourth Dept 11-20-20

 

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