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ERROR TO ALLOW PROSECUTOR TO IMPEACH HER OWN WITNESS WITH THE WITNESS’S GRAND JURY TESTIMONY, EVIDENTIARY ERRORS COUPLED WITH PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department determined the allowing the prosecutor to impeach her own witness with the witness’s grand jury testimony, allowing inadmissible hearsay, together with the prosecutor’s improper remarks in summation, required reversal in the interest of justIce:

… [A] new trial is warranted as a result of two evidentiary errors, both of which were compounded by improper remarks made during the People’s summation. Specifically, the Supreme Court allowed the prosecutor to impeach one of her own witnesses, who testified at trial that it was dark at the time of the shooting and she “couldn’t really see” the shooter. The prosecutor was permitted to read that witness’s prior grand jury testimony, in which she stated that she recognized the shooter as a person going by the nickname of E-Villain. This was error … . Moreover, during summation, the prosecutor compounded the error by improperly using the prior inconsistent statement as evidence in chief … , telling the jury that when that witness previously spoke to the police, to an assistant district attorney, and to the grand jury, “on each of those occasions, she said what it is she saw and who it is that she saw do it,” and urging the jury to find “she was not telling you the truth when she said that I now am telling you I did not see who did it, that it was too dark.” Later, the prosecutor went one step further, stating, in direct contradiction to the witness’s trial testimony, that “[she] saw who it was.”

The Supreme Court also erred in allowing another witness to testify that a “little girl said that [the defendant] shot [the victim]” … . Moreover, on summation, the prosecutor not only repeated the improper hearsay testimony but also mispresented the defendant as having told one of the witnesses, “You know what, that little girl that told you that was a hundred percent right.” People v Thomas, 2016 NY Slip Op 06851, 2nd Dept 10-19-16

 

CRIMINAL LAW (EVIDENTIARY ERRORS COUPLED WITH PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/EVIDENCE (CRIMINAL LAW, PROSECUTOR’S IMPEACHMENT OF PEOPLE’S WITNESS WITH GRAND JURY TESTIMONY, INADMISSIBLE HEARSAY, AND PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL)/APPEALS (EVIDENTIARY ERRORS COUPLED WITH PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)/GRAND JURY (PROSECUTOR’S IMPEACHMENT OF PEOPLE’S WITNESS WITH GRAND JURY TESTIMONY, INADMISSIBLE HEARSAY, AND PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL)/IMPEACHMENT (CRIMINAL LAW, PROSECUTOR’S IMPEACHMENT OF PEOPLE’S WITNESS WITH GRAND JURY TESTIMONY, INADMISSIBLE HEARSAY, AND PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL)/APPEALS (CRIMINAL LAW, (EVIDENTIARY ERRORS COUPLED WITH PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL IN THE INTEREST OF JUSTICE)

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POLICE OFFICER HAD AN OBJECTIVE, CREDIBLE REASON FOR APPROACHING DEFENDANT IN HER CAR, EVIDENCE OF DWI SHOULD NOT HAVE BEEN SUPPRESSED.

The Second Department, reversing Supreme Court, determined evidence of defendant’s intoxication should not have been suppressed. The arresting officer approached defendant’s car because she was stopped for some time behind a police cruiser which was blocking the turning lane. The Second Department ruled that the officer did not need a suspicion of criminal activity to approach the defendant and ask for her license, insurance card and registration. In the course of interacting with the defendant, the officer noticed signs of intoxication:

Based on the testimony adduced at the suppression hearing, the officer had an objective, credible reason for approaching the defendant’s vehicle and asking for her license, registration, and insurance card. The defendant’s vehicle was oddly stopped in the left turning lane behind the officer’s vehicle, when it was obvious that she could not make a left turn. The defendant could have easily proceeded north on Oceanside Road, but instead stopped her vehicle for several minutes behind the officer’s vehicle. Under these circumstances, the officer had an objective, credible reason to approach the defendant’s vehicle and request information … . People v Karagoz, 2016 NY Slip Op 06842, 2nd Dept 10-19-16

 CRIMINAL LAW (POLICE OFFICER HAD AN OBJECTIVE, CREDIBLE REASON FOR APPROACHING DEFENDANT IN HER CAR, EVIDENCE OF DWI SHOULD NOT HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, POLICE OFFICER HAD AN OBJECTIVE, CREDIBLE REASON FOR APPROACHING DEFENDANT IN HER CAR, EVIDENCE OF DWI SHOULD NOT HAVE BEEN SUPPRESSED)/STREET STOPS (POLICE OFFICER HAD AN OBJECTIVE, CREDIBLE REASON FOR APPROACHING DEFENDANT IN HER CAR, EVIDENCE OF DWI SHOULD NOT HAVE BEEN SUPPRESSED)/SUPPRESSION (STREET STOP, POLICE OFFICER HAD AN OBJECTIVE, CREDIBLE REASON FOR APPROACHING DEFENDANT IN HER CAR, EVIDENCE OF DWI SHOULD NOT HAVE BEEN SUPPRESSED)

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DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED.

The First Department, reversing the defendants’ fraud-related convictions, determined (1) the defense did not “open the door” to the admission of hearsay evidence that a nontestifying codefendant (Solomon) pled guilty in a related matter, and (2) the criteria for the business records exception to the hearsay rule were not met:

… [T]he inquiry whether a defendant opened the door to the admission of otherwise inadmissible evidence “is twofold — whether and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression” … .  * * *

A party seeking to introduce evidence under the exception must demonstrate that “each participant in the chain producing the record, from the initial declarant to the final entrant, [was] acting within the course of regular business conduct” when the record was made … . We find that although bank personnel were acting under a business duty when the record was created, the record fails to demonstrate that Solomon was acting under such a duty when he supplied the information at issue. People v Schlesinger Elec. Contrs., Inc., 2016 NY Slip Op 06742, 1st Dept 10-13-16

 

CRIMINAL LAW (DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/EVIDENCE (CRIMINAL LAW, DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/HEARSAY (CRIMINAL LAW, DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/OPEN THE DOOR (CRIMINAL LAW, DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (CRIMINAL LAW, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)

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PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT.

The First Department affirmed the denial of the psychiatric center’s (petitioner’s) application for continued retention of respondent pursuant to Mental Hygiene Law 9.33. The need for continued supervision was not demonstrated by conclusory allegations that respondent posed a threat of harm or by unsupported allegations of sexual misconduct:

Although respondent’s treating psychiatrist stated in conclusory fashion that the requirements for continued involuntary retention were met, the court reasonably rejected these conclusions on the ground that they were not strongly supported by the evidence … . The psychiatrist indicated that respondent recognized his mental illness, that he had been compliant with his medication regimen, and that his treatment in the facility for more than two years had alleviated the manic symptoms he had initially presented upon admission. The psychiatrist acknowledged that respondent’s medications and therapy programs would remain readily available to him on an outpatient basis, and the psychiatrist provided no reason to doubt respondent’s claim that he would continue taking his medication once released … .

Respondent has a history of sexual preoccupation, sexual misconduct, and sexual impulsivity. However, the court gave little weight to the allegations of recent misconduct in the absence of any eyewitness testimony and in light of respondent’s denials, and there is no basis for disturbing the court’s weighing of the evidence. The remaining hearsay statements that respondent had acted inappropriately were unaccompanied by any detail, including when the incidents allegedly occurred. Matter of Gary F. 2016 NY Slip Op 06655, 1st Dept 10-11-16

 

MENTAL HYGIENE LAW (PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT)/EVIDENCE (MENTAL HYGIENE LAW, PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT)

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CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE.

The Fourth Department determined defendant’s sexual abuse conviction, which was based solely on defendant’s confession, was against the weight of the evidence:

CPL 60.50 requires corroboration of such a confession: “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.” Here, there is no such corroboration. The People assert that defendant’s confession “was sufficiently corroborated by the testimony of the child victim and her numerous hearsay disclosures solicited by the defense.” The record does not support that assertion, however, inasmuch as the victim never testified that she touched defendant’s penis with her hand, and there is no other evidence—hearsay or otherwise—independent of defendant’s confession to support defendant’s conviction of sexual abuse. Although it is well settled that “additional proof need not corroborate every detail of the confession,’ ” we conclude that defendant’s conviction of sexual abuse in the first degree was “based solely on [defendant’s] uncorroborated [confession]” … . Since there was “no corroborating proof of whatever weight,’ [count two of the indictment] must be dismissed” … . People v Maynard, 2016 NY Slip Op 06573, 4th Dept 10-7-16

CRIMINAL LAW (CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE)/EVIDENCE (CRIMINAL LAW, CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE)/CONFESSIONS (CONVICTION BASED SOLELY ON DEFENDANT’S CONFESSION WAS AGAINST THE WEIGHT OF THE EVIDENCE

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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE.

The Fourth Department reversed defendant’s conviction and ordered a new trial because of prosecutorial misconduct to which defense counsel did not object. The prosecutor grossly exaggerated the nature and importance of DNA evidence found on a weapon. Defense counsel’s failure to object constituted ineffective assistance:

At trial, the People presented testimony of a forensic expert to discuss DNA evidence collected from the gun, but the testimony was not conclusive. The expert testified that she analyzed the DNA mixture and determined that defendant was among 1 in 15 Americans who could not be excluded as a contributor. Nevertheless, on summation, the prosecutor grossly exaggerated the DNA evidence as “overwhelming” proof establishing defendant’s “guilt beyond all doubt” and posited: “If the defendant had not possessed the gun, wouldn’t science have excluded him?” In our view, the prosecutor’s flagrant distortion of the DNA evidence caused defendant such substantial prejudice that he was denied due process of law, particularly in light of the circumstantial nature of the People’s case … . In light of the foregoing, we agree with defendant’s related contention that he was denied effective assistance of counsel owing to defense counsel’s failure to object to the prosecutor’s misconduct during summation … . People v Rozier, 2016 NY Slip Op 06577, 4th Dept 10-7-16

CRIMINAL LAW (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/EVIDENCE (CRIMINAL LAW, DNA, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/PROSECUTORIAL MISCONDUCT (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/DNA (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)

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PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL; FAILURE TO ALLEGE ANY ESPINAL EXCEPTION MANDATED SUMMARY JUDGMENT IN FAVOR OF THE CLEANING CONTRACTOR.

Although the facts were not explained, the Second Department determined proof of “specific,” as opposed to “general,” cleaning practices, “under the circumstances,” was sufficient to meet defendant’s burden demonstrating the absence of constructive notice of the condition which caused plaintiff to fall (not specified in the decision). In addition, because plaintiff did not allege any of the “Espinal” exceptions, proof the plaintiff was not a party to the building owner’s contract with the cleaning contractor was sufficient to warrant summary judgment in favor of the contractor:

A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it … . To meet its initial burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall … . Although submission of evidence as to the defendant’s general cleaning practices is generally insufficient to meet the defendant’s burden on the issue of lack of constructive notice, specific evidence as to cleaning practices may be adequate, depending on the circumstances of the case … .

Here, the owner satisfied its prima facie burden through submission of the deposition testimony of an employee of the contractor and the building concierge employed by the owner. The testimony of the building concierge, and the testimony of the contractor’s employee regarding the frequency of the employee’s inspections of the area where the injured plaintiff fell, established, prima facie, that the owner did not have constructive notice of the allegedly dangerous condition … . Mavis v Rexcorp Realty, LLC, 2016 NY Slip Op 06476, 2nd Dept 10-5-16

NEGLIGENCE (PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/SLIP AND FALL (PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/EVIDENCE (SLIP AND FALL, PROOF OF SPECIFIC AS OPPOSED TO GENERAL CLEANING PRACTICES, UNDER THE CIRCUMSTANCES, WAS DEEMED SUFFICIENT TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL)/CONTRACT LAW (SLIP AND FALL, FAILURE TO ALLEGE ANY ESPINAL EXCEPTION MANDATED SUMMARY JUDGMENT IN FAVOR OF THE CLEANING CONTRACTOR)

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DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined the defendant (Dick) in this rear-end collision case demonstrated freedom from fault and was entitled to summary judgment. The evidence, including plaintiff’s testimony, demonstrated defendant’s vehicle was struck from behind while stopped behind plaintiff, and thereby pushed into contact with the rear of plaintiff’s vehicle. It was alleged that defendant’s vehicle was struck from behind by a Verizon truck which left the scene. That there was a question of fact whether any Verizon truck was involved in the accident had no effect on defendant’s entitlement to summary judgment:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway” … . Hence, “[a] rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” … . “Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation” … .

Here, Dick established his prima facie entitlement to judgment as a matter of law by demonstrating that his stopped vehicle was propelled forward into the plaintiff’s vehicle after his vehicle was struck in the rear by a third vehicle, and that he was not at fault in the happening of the accident … . In opposition, the Verizon defendants failed to raise a triable issue of fact as to whether Dick was at fault in the happening of the accident … . Contrary to the Verizon defendants’ contention, the issue of whether they owned the third vehicle which struck Dick’s vehicle is not relevant to the determination of this motion. Wooldridge-Solano v Dick, 2016 NY Slip Op 06488, 2nd Dept 10-5-16

NEGLIGENCE (DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/EVIDENCE (REAR-END COLLISION, DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/SUMMARY JUDGMENT (REAR-END COLLISION, DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/COMPARATIVE FAULT (REAR-END COLLISION, DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)/REAR-END COLLISION (DEFENDANT IN THIS REAR-END COLLISION CASE DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT AND WAS THEREFORE ENTITLED TO SUMMARY JUDGMENT)

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PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiffs’ failure to demonstrate the absence of comparative fault in this rear-end collision case required the denial of plaintiffs’ motion for summary judgment without reference to defendant’s papers:

 

“To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault” … . A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence … . Here, the plaintiffs’ submissions in support of their motion, which included the defendant’s deposition transcript, failed to eliminate a triable issue of fact as to whether the defendant had a nonnegligent explanation for the collision. According to the defendant, the plaintiffs’ vehicle came to a stop, started again, and came to a second stop for no apparent reason. The defendant claimed that when he braked to avoid a collision, his vehicle skidded on a roadway which was wet from melting snow … . Moluh v Vord, 2016 NY Slip Op 06477, 2nd Dept 10-5-16

NEGLIGENCE (PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (REAR-END COLLISION, PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/COMPARATIVE FAULT (SUMMARY JUDGMENT, PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/SUMMARY JUDGMENT (REAR-END COLLISION PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)/REAR-END COLLISIONS (PLAINTIFFS FAILED TO DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS REAR-END COLLISION CASE, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS SHOULD NOT HAVE BEEN GRANTED)

 

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FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED.

The Second Department, reversing Family Court, determined Family Court should have granted mother’s objection to the support magistrate’s finding father did not willfully violate the support order. Proof that support payments were not made is prima facie proof of a willful violation requiring father to come forward with an explanation. Father offered no explanation:

Here, the father’s failure to satisfy his child support obligations constituted prima facie evidence of a willful violation … . This showing shifted the burden to the father to come forward with competent, credible evidence that his failure to pay support in accordance with the terms of the support order was not willful … . The father failed to satisfy this burden. There was no evidence that the father was financially unable to meet his child support obligations. Accordingly, the Family Court should have granted the mother’s objection to so much of the Support Magistrate’s order as determined that the father did not willfully violate the support order. Since the father’s violation of the support order was willful, the court was required to award an attorney’s fee to the mother … . Matter of Torres v Moran, 2016 NY Slip Op 06506, 2nd Dept 10-5-16

FAMILY LAW (FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)/EVIDENCE (FAMILY LAW, FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)/CHILD SUPPORT (FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)

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