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FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT).

The Second Department, reversing Family Court, determined it was in the best interests of the child to free the child for adoption without the consent of father. Mother’s parental rights had terminated, but the court-appointed evaluator testified the relationship with father was positive and should not be terminated. The Second Department held that other evidence which supported freeing the child for adoption was not given sufficient weight:

“This Court will not disturb a Family Court’s determination regarding the best interests of the child unless it lacks a sound and substantial basis in the record” … . Here, the hearing court’s finding that it would be in the best interests of the child to remain in foster care instead of being freed for adoption lacks such a sound and substantial basis. The finding was based primarily on the opinions offered by the court-appointed evaluator, who recommended that the foster mother have custody of the child because she raised him since he was an infant, she has an “extremely close bond” with him, and she is able to take care of the child’s special needs. While the evaluator also opined that the child has a “very positive relationship” with the father, and that it would not be in the best interests of the child to sever that relationship by freeing the child for adoption, the evaluator conceded that the foster mother and the father view each other with “significant distrust,” that the child “hears conflicting information” from the foster mother and the father, that the child “senses their anger and conflict,” and that the conflict was “very stre not determinative … . Based on the record before us, we find that the hearing court gave undue weight to the evaluator’s conclusions with regard to the benefits of the child’s relationship with the father … and failed to accord sufficient weight to the impact on the child of long-term foster care, which would continue to expose him to the distrust between the foster mother and the father, and deprive the child of “a permanent, nurturing family relationship” …  .

Moreover, the Family Court did not give sufficient weight to testimony from the assigned case planner and the foster mother that the child repeatedly had contact with the birth mother during his visits with the father, in violation of the court’s directive precluding such contact with the birth mother. Similarly, the evaluator did not consider either the possibility that the father was exposing the child to the birth mother or the effects on the child of continued contact with the birth mother, information vital to assessing the best interests of the child. Matter of Jasiah T.-V. S.J. (Joshua W.–Shatesse J.), 2018 NY Slip Op 08020, Second Dept 11-21-18

FAMILY LAW (FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT))/EVIDENCE (FAMILY LAW, FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT))/SOUND AND SUBSTANTIAL BASIS (FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT))

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SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT).

The Second Department, modifying (reversing) Supreme Court in this action for divorce, determined that defendant’s motion to preclude plaintiff from introducing certain evidence at trial because of the failure to comply with discovery orders should have been granted. Defendant’s request for attorney’s fees was properly denied, however, because plaintiff is the less-monied spouse:

A court may prohibit a party “from producing in evidence designated things or items of testimony” if the party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126[2] …). Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious … . The willful and contumacious character of a party’s conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse for these failures, or (2) the failure to comply with court-ordered discovery over an extended period of time … .

Here, the defendant demonstrated that the plaintiff failed to comply with court-ordered discovery over an extended period of time. The willful and contumacious character of the plaintiff’s conduct may be inferred from her failure to respond to the defendant’s letter … , despite two court orders directing her to do so, and her failure to proffer any excuse for her failure. Accordingly, that branch of the defendant’s motion which was to preclude the plaintiff from producing physical evidence or testimony at trial relating to certain limited items previously requested but not disclosed should have been granted.

We agree, however, with the Supreme Court’s denial of that branch of the defendant’s motion which was to direct the plaintiff to pay interim counsel fees in the sum of $5,000, since the plaintiff is the less-monied spouse … . Maliah-Dupass v Dupass, 2018 NY Slip Op 08018, Second Dept 11-21-18

FAMILY LAW (DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/DIVORCE (SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/CIVIL PROCEDURE (DISCOVERY, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/CPLR 3126 (DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/EVIDENCE (CIVIL PROCEDURE, PRECLUSION, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/ATTORNEYS (FAMILY LAW, DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))

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DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined defendant, an inmate, did not present sufficient proof that Department of Correctional Services (DOCS) personnel acted as agents for the police when investigating a killing in the prison. Defendant alleged that inmates were coerced into testifying against him and evidence of the coercion was Brady material which should have been provided to the defense by the prosecutor. The Third Department found defendant had not met his burden of proof concerning whether the DOCS personnel were acting as agents for the police. Rather, there was evidence that the DOCS investigation and the police investigation were separate and had different purposes. Therefore defendant’s motion to vacate his conviction was properly denied:

Several cases have held that “[e]vidence gathered by prison staff . . . generally is not ‘under the control or in the possession of the People or its agents, but [is] instead in the possession of an administrative agency that was not performing law enforcement functions'”… . That said, whether knowledge of a government official or employee may be imputed to the People appears to turn on whether participation in the criminal probe was an ancillary law enforcement task… or whether the level of cooperation between the employee and law enforcement in a particular criminal investigation renders the employee an agent of the People … . Under agency principles, “acts of agents, and the knowledge they acquire while acting within the scope of their authority are presumptively imputed to their principals”… . For example, “[w]hile social workers are generally not agents of the police,” in situations where they engage in a “joint venture” with police agencies to collaborate on child abuse or sexual abuse investigations, share information and a common purpose, and have a “cooperative working arrangement” with police, an agency relationship may exist such that the social workers’ knowledge is imputed to the People … . …

… [I]t appears that the State Police and IG [the DOCS Investigator General] were conducting parallel investigations — one criminal and one administrative, albeit with some obvious and necessary overlap — addressing different aspects of the situation… . The report from the lead IG investigator — who was not called to testify — reveals that he interviewed inmates with the State Police, gathered information for two months after the incident, conferred with State Police and met with the District Attorney. But the report indicates that the IG closed its case six months before defendant’s criminal trial, based on a finding that there was no evidence of staff misconduct, indicating the administrative focus of the IG’s investigation. People v Lewis, 2018 NY Slip Op 07980, Third Dept 11-21-18

CRIMINAL LAW (DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/EVIDENCE (DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORS, BRADY MATERIAL, DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/BRADY MATERIAL (DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/AGENCY (CRIMINAL LAW, JOINT INVESTIGATIONS, DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/VACATE CONVICTION, MOTION TO  (DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))

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DEFENDANT DEEMED TO HAVE CONSENTED TO THE RECORDING OF PHONE CALLS MADE FROM JAIL AND TO THE PRESENTATION OF THE RECORDINGS AS TRIAL EVIDENCE (FIRST DEPT).

The First Department determined the defendant’s request to preclude recording of phone calls he made from jail was properly denied. Defendant was deemed to have consented to the recordings:

“Defendant impliedly consented to the recording of the call(s) based on his receipt of multiple forms of notice that his calls would be recorded, and he was not entitled to separate notice that the calls might be subpoenaed by prosecutors” … . People v Mason, 2018 NY Slip Op 07944, First Dept 11-20-18

CRIMINAL LAW (EVIDENCE, DEFENDANT DEEMED TO HAVE CONSENTED TO THE RECORDING OF PHONE CALLS MADE FROM JAIL AND TO THE PRESENTATION OF THE RECORDINGS AS TRIAL EVIDENCE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, PHONE CALLS FROM JAIL, DEFENDANT DEEMED TO HAVE CONSENTED TO THE RECORDING OF PHONE CALLS MADE FROM JAIL AND TO THE PRESENTATION OF THE RECORDINGS AS TRIAL EVIDENCE (FIRST DEPT))/PHONE CALLS (CRIMINAL LAW, JAIL,  DEFENDANT DEEMED TO HAVE CONSENTED TO THE RECORDING OF PHONE CALLS MADE FROM JAIL AND TO THE PRESENTATION OF THE RECORDINGS AS TRIAL EVIDENCE (FIRST DEPT))/RECORDINGS (PHONE CALL, JAIL, CRIMINAL LAW, DEFENDANT DEEMED TO HAVE CONSENTED TO THE RECORDING OF PHONE CALLS MADE FROM JAIL AND TO THE PRESENTATION OF THE RECORDINGS AS TRIAL EVIDENCE (FIRST DEPT))

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EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP).

The Court of Appeals, over a two-judge dissent, determined the evidence of serious physical injury in this first degree assault case met the “legally sufficient evidence” standard of appellate review. The victim was shot in the leg and bullet fragments remain in his body:

The victim testified that he can still “feel [the bullet] poking out,” and that he continues to endure the effects “of the metal inside [his] leg.” Even four years after the shooting, the victim noted that the injury still “disturbs” him at times, and that “something is wrong with [his] leg.” The victim stated that, because the bullet “didn’t come out of [his] leg,” his “life” had been “tampered with.” For instance, he can no longer participate in competitive sports, as the injury would present a “very, very, very, very big risk.” The medical expert further testified that there are “many repercussions” of the type of muscle damage that the victim sustained: “Muscle damage can cause long-term injuries to the kidneys from leakage of chemicals from the muscle, toxic to the kidneys, can cause pain and weakness, difficulty walking.”

As the dissent notes, there is certainly record evidence favorable to the defense that, when viewed in isolation, might have presented an issue of fact for the jury. That said, viewing the evidence in the light most favorable to the People, as our legal sufficiency standard requires, we have no trouble concluding that the jury acted rationally in finding that the victim’s gunshot wound constituted a “serious physical injury” … . People v Garland, 2018 NY Slip Op 07927, CtApp 11-20-18

CRIMINAL LAW (EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP))/EVIDENCE (CRIMINAL LAW, EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP))/APPEALS (CRIMINAL LAW, LEGALLY SUFFICIENT EVIDENCE, EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP))/SERIOUS PHYSICAL INJURY (CRIMINAL LAW, ASSAULT, EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP))/LEGALLY SUFFICIENT EVIDENCE (CRIMINAL LAW, APPEALS, EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP))/ASSAULT (EVIDENCE OF SERIOUS PHYSICAL INJURY MET THE LEGALLY SUFFICIENT EVIDENCE APPELLATE REVIEW CRITERIA (CT APP))

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THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP).

The Court of Appeals, over a two-judge concurrence, determined the defendant’s argument that the integrity of the grand jury proceedings was impaired by the prosecution’s failure to call a witness requested by the defendant did not raise a constitutional issue and therefore was precluded by defendant’s guilty plea:

Defendant does not contend that the evidence before the grand jury was insufficient to support the indictment. Instead, defendant claims that the prosecutor’s conduct impaired the integrity of the grand jury proceeding and argues his motion to dismiss the indictment for defective grand jury proceedings on that ground is not forfeited by his guilty plea. …

… [W]e have explained that even after entering a valid guilty plea, “a defendant may not forfeit a claim of a constitutional [*2]defect implicating the integrity of the process” …  and we have recognized that certain claimed defects in a grand jury proceeding rise to this level … .

Defendant’s claim in this case rests on the purported exclusion of a witness, the substance of whose testimony was contained in an affidavit provided to the courts below. That proffered testimony was largely inadmissible and, in any event, would have inculpated him by establishing that he had a relationship with the complainant and had been in her presence in violation of an order of protection. The exclusion of such testimony before the grand jury does not present “a constitutional defect implicating the integrity of the process”…  and accordingly the claimed violation in this case did not survive defendant’s guilty plea.  People v Manragh, 2018 NY Slip Op 07924, CtApp 11-20-18

CRIMINAL LAW (THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP))/EVIDENCE (CRIMINAL LAW, GRAND JURY, THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP))/APPEALS (CRIMINAL LAW, GUILTY PLEA, THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP))/GUILTY PLEA (APPEALS, HE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP))/GRAND JURY (APPEALS, GUILTY PLEA, THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP))

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IT IS NOT NECESSARY TO HAVE POSSESSION OF THE MORTGAGE, AS OPPOSED TO THE NOTE, AT THE TIME OF THE COMMENCEMENT OF A FORECLOSURE ACTION, EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S STANDING (FIRST DEPT).

The First Department determined plaintiff had raised a question of fact about whether it had standing to bring this foreclosure action. The court noted that it is not necessary to have possession of the mortgage, as opposed to the note, at the time the action is commenced. A question of fact about possession of the note was raised by evidence admissible pursuant to the business records exception to the hearsay rule:

“[T]o have standing, it is not necessary to have possession of the mortgage at the time the action is commenced . . . . [T]he note, and not the mortgage, is the dispositive instrument that conveys standing to foreclose under New York law” … . Plaintiff raised a question of fact as to its possession of the note prior to commencement of the action through the affidavit of Anthony D’Addona, who averred that he reviewed the books and records of plaintiff, kept in the ordinary course of business, and that plaintiff was the holder of the note and mortgage. This affidavit was sworn to on September 28, 2015, prior to commencement of this action. “It is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity’s files” … . DLJ Mtge. Capital v Mahadeo, 2018 NY Slip Op 07963, First Dept 11-20-18

FORECLOSURE (IT IS NOT NECESSARY TO HAVE POSSESSION OF THE MORTGAGE, AS OPPOSED TO THE NOTE, AT THE TIME OF THE COMMENCEMENT OF A FORECLOSURE ACTION, EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S STANDING (FIRST DEPT))/STANDING (FORECLOSURE, IT IS NOT NECESSARY TO HAVE POSSESSION OF THE MORTGAGE, AS OPPOSED TO THE NOTE, AT THE TIME OF THE COMMENCEMENT OF A FORECLOSURE ACTION, EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S STANDING (FIRST DEPT))/BUSINESS RECORDS (FORECLOSURE, IT IS NOT NECESSARY TO HAVE POSSESSION OF THE MORTGAGE, AS OPPOSED TO THE NOTE, AT THE TIME OF THE COMMENCEMENT OF A FORECLOSURE ACTION, EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S STANDING (FIRST DEPT))/HEARSAY (BUSINESS RECORDS, FORECLOSURE, (IT IS NOT NECESSARY TO HAVE POSSESSION OF THE MORTGAGE, AS OPPOSED TO THE NOTE, AT THE TIME OF THE COMMENCEMENT OF A FORECLOSURE ACTION, EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S STANDING (FIRST DEPT))

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FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT). ​

The First Department, reversing Family Court, determined that Family Court did not have enough evidence before it to justify denying mother’s petition to modify custody. Family Court relied upon a hearsay letter from the NYS Office of Children and Family Services Child Abuse and Maltreatment Register to the effect that certain allegations against the father were unfounded or unsubstantiated:

First, the Family Court improperly denied the mother an opportunity to respond to the “unfounded” letter, which was hearsay. Moreover, although the father apparently had it in his possession for approximately two months, he did not provide it to her until the September 20 court appearance.

Second, * * * even if the “unsubstantiated” letter referred to the report made by the older child’s school social worker, that letter did not disprove the mother’s uncontroverted assertion that, both before and after that report was made, the children had expressed fear of and a desire not to visit with the father. …

Finally, to the extent that Family Court was making a determination that the parties’ child’s fear of his father was unfounded based on the “unsubstantiated” letter, and that modification was therefore not in the child’s best interests, this was error. Since this was the parties’ first appearance before this judge, the court did not have sufficient information about the parties and their child to make a comprehensive and independent determination about the child’s best interests … . Matter of Juliette S. v Tykym S., 2018 NY Slip Op 07960, First Dept 11-20-18

FAMILY LAW (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/EVIDENCE (FAMILY LAW, FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/CUSTODY  (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/ABUSE (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/HEARSAY  (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))

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SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT).

The First Department determined Supreme Court properly suppressed evidence seized at the time of the illegal arrest, as well as the subsequent lineup identification:

… [A]t the time of the gunpoint seizure of the two defendants, the police had an anonymous tip that an undescribed suspect or suspects had burglarized an unspecified apartment on the sixth floor of a building, they spoke to building residents who reported noise on that floor, and they saw defendants leaving an apartment on that floor carrying undescribed bags. The totality of this information failed to provide reasonable suspicion to support an immediate forcible seizure without any inquiry. The police learned additional information, but only after the unlawful seizure.

Therefore, the court properly suppressed all physical evidence as fruit of the illegality. Furthermore, the court also granted suppression, independently of the initial illegality, because the witness’s recollection about the subsequent search of the contents of the bags, and about the recovery of gloves from the hallway floor, was so limited that the People did not meet their initial burden of coming forward with credible evidence to establish either a search of the bags incident to a lawful arrest or the abandonment of the gloves … .

The record also supports the court’s determination to suppress an officer’s lineup identification of [defendant] Salkey, who had fled the scene, as the unattenuated fruit of the unlawful stop and frisk … . The vague testimony provided no explanation of how Salkey came to be placed in a lineup, and no basis for finding attenuation from the initial illegality. People v Brown, 2018 NY Slip Op 07956, First Dept 11-20-18

CRIMINAL LAW (EVIDENCE, SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT))/EVIDENCE (CRIMINAL LAW,  SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT))/SUPPRESSION  (CRIMINAL LAW,  SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW,  SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT))/LINEUPS (CRIMINAL LAW,  SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT))/IDENTIFICATION (LINEUPS, (CRIMINAL LAW,  SUPREME COURT PROPERLY FOUND THE GUNPOINT ARREST UNLAWFUL AND PROPERLY SUPPRESSED THE SEIZED ITEMS AND THE LINEUP IDENTIFICATION (FIRST DEPT))

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PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT).

The Fourth Department determined petitioner had the right to appeal a ruling which granted relief he had requested in the alternative but denied the more complete relief requested in the petition. The court further found that the evidence supported the finding that petitioner is a detained sex offender with a mental abnormality and required a regimen of strict and intensive superivsion and treatment (SIST):

… [W]e conclude that petitioner is aggrieved by the order because, although Supreme Court granted one of the forms of the relief he requested in the alternative, i.e., release under a regimen of SIST, the primary relief he sought was release to the community without conditions, and the denial of that part of the petition involved a substantial right of petitioner … . …

We … reject petitioner’s contention that basing the determination that he has a mental abnormality on a diagnosis of unspecified paraphilic disorder does not comport with the requirements of due process. That diagnosis is contained in the current edition of the Diagnostic and Statistical Manual — Fifth Edition (DSM-5). Although there is limited case law concerning that diagnosis, the Court of Appeals has repeatedly held that basing such a determination on the very similar former diagnosis of paraphilia not otherwise specified (paraphilia NOS) meets the requirements of due process … , and the diagnosis of unspecified paraphilic disorder has similar diagnostic requirements as the former diagnosis of paraphilia NOS. …

In addition, “to the extent that [petitioner] challenges the validity of [unspecified paraphilic disorder] as a predicate condition, disease or disorder,’ we need not reach that argument because he did not mount a Frye challenge to the diagnosis” … . Matter of Luis S. v State of New York, 2018 NY Slip Op 07852, Fourth Dept 11-16-18

MENTAL HYGIENE LAW (PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT))/CRIMINAL LAW (MENTAL HYGIENE LAW, SEX OFFENDERS, (PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, MENTAL HYGIENE LAW, PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT))/STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT))/APPEALS (MENTAL HYGIENE LAW, CRIMINAL LAW, SEX OFFENDERS, PETITIONER SEX OFFENDER HAD THE RIGHT TO APPEAL FROM A RULING WHICH GRANTED RELIEF REQUESTED IN THE ALTERNATIVE BUT DENIED THE MORE COMPLETE RELIEF REQUESTED, EVIDENCE SUPPORTED FINDING THAT PETITIONER SUFFERED FROM A MENTAL ABNORMALITY AND REQUIRED A REGIMEN OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (FOURTH DEPT))

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