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THE PROOF FATHER NEGLECTED THE CHILD WAS PRIMARILY BASED UPON HIS INCARCERATION, WHICH WAS NOT SUFFICIENT (THIRD DEPT).

The Third Department, reversing Family Court, over a concurrence, determined the proof respondent father neglected the child was insufficient. The neglect finding appeared to be primarily based upon father’s incarceration:

We note that a determination of whether respondent neglected the child was complicated by the fact that no DNA analysis was performed to establish paternity until late 2020, over a year after the child’s birth. * * *

At the fact-finding hearing, … most of the proof upon which petitioner relied was … hearsay. Although no objections were raised, the caseworker testified to the mother’s statements regarding paternity and to respondent’s mother’s statements. In the end, petitioner’s proof failed to establish how respondent’s plan to have his mother care for the child fell below the “minimum degree of care” or how it impaired the child or placed him in imminent danger of becoming impaired … . Petitioner’s proof seemed to be predicated solely on respondent’s incarceration, which cannot alone form the basis for a neglect finding … . Due to the accumulation of errors by petitioner, and the insufficiency of its proof, we find that petitioner failed to establish that respondent neglected the subject child … . Matter of Elijah AA. (Alexander AA.), 2023 NY Slip Op 02812, Third Dept 5-25-23

Practice Point: Here the proof father neglected the child was insufficient. Despite father’s request, a paternity test was not performed for more than a year after the child’s birth. Once father was incarcerated two months before the child’s birth, his mother refused to help out with care for the child, but father was not so informed. Neglect cannot be based solely on father’s incarceration.

 

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THE PROOF OF DOMESTIC VIOLENCE AT THE FORTHCOMING CUSTODY TRIAL SHOULD NOT HAVE BEEN LIMITED TO INCIDENTS OCCURRING AFTER THE HAGUE CONVENTION PROCEEDINGS IN CYPRUS (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court, determined the proof of domestic violence at the upcoming custody trial should not have been limited to incidents occurring after the Hague Convention proceedings in Cyprus:

… [T]hat aspect of the order that limits the proof of domestic violence that the mother may try to introduce at the forthcoming custody trial to incidents that have occurred since conclusion of the Hague Convention proceedings, is vacated. The court correctly recognized “[a] decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence” … . However, it then effectively vested the Hague Convention proceedings with preclusive effect as to claims of domestic violence, by ruling that, at the impending custody hearing, the mother could only seek to introduce evidence of domestic violence that has occurred since those proceedings’ conclusion. There should have been no such temporal limitation imposed on the domestic violence evidence the mother may seek to introduce. Gould v Kontogiorge, 2023 NY Slip Op 02824, First Dept 5-25-23

Practice Point: Here Family Court should not have limited proof of domestic violence at the upcoming custody trial to incidents occurring after the Hague Convention proceedings in Cyprus. A Hague Convention is not a determination on the merits of any custody issue.

 

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MOTHER’S PETITION ALLEGED FACTS SUFFICIENT TO WARRANT A MODIFICATION-OF-CUSTODY HEARING; LEGAL CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition alleged facts sufficient to warrant a hearing on whether the custody arrangement should be modified:

… [M]other’s petition contained allegations that were sufficiently specific to warrant a hearing, including the allegations that the parties’ ability to cooperate with each other with respect to the children had deteriorated and that the parties were no longer capable of communicating with each other in a civil and cooperative manner … .. Those allegations were not before the Family Court on a prior occasion, and were not merely conclusory or nonspecific allegations … . Because facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required  … . Matter of Liang v O’Brien, 2023 NY Slip Op 02789, Second Dept 5-24-23

Practice Point: Here mother’s petition alleged facts sufficient to warrant a modification-of-custody hearing. Although the facts are not described, the legal criteria are laid out in detail.

 

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THE RECORD DID NOT SUPPORT THE FINDING THAT FATHER, DUE TO UNTREATED MENTAL ILLNESS, NEGLECTED ONE CHILD AND DERIVATIVELY NEGLECTED THE OTHER CHILDREN; THE CRITERIA FOR A NEGLECT FINDING IN THIS CONTEXT ARE LAID OUT IN DETAIL (SECOND DEPT).

The Second Department, reversing Family Court, determined the finding that father, due to untreated mental illness, neglected one child, Fyre, and derivatively neglected the other children was not supported by the record:

… [T]he record fails to support a finding of derivative neglect as to the subject children based on the purported neglect of Fyre. In that regard, the petitioner failed to establish that the father suffered from an untreated mental illness that placed Fyre at imminent risk of harm … . Inasmuch as the evidence failed to support a finding that Fyre was endangered by the father’s untreated mental illness, it failed to support a finding of derivative neglect as to the subject children (see Family Ct Act § 1046[a][i] …). Matter of Sonja R. (Victor R.), 2023 NY Slip Op 02787, Second Dept 5-24-23

Practice Point: Here the record did not support the finding that father, based upon his allegedly untreated mental illness, neglected one child and derivatively neglected the other children. Although the facts are not described, the legal criteria for neglect in this context are explained in detail.

 

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THE FACT THAT THE PEOPLE WERE HELPING THE COMPLAINANT PROCURE A U VISA WHICH WOULD ALLOW THE COMPLAINANT TO STAY IN THE US AND APPLY FOR PERMANENT RESIDENCE WAS BRADY MATERIAL WHICH SHOULD HAVE BEEN PROVIDED TO THE DEFENSE; U VISAS ARE AVAILABLE TO ALIENS WHO SUFFER ABUSE FROM CRIMINAL ACTIVITY; CONVICTIONS REVERSED AND INDICTMENTS DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined defendants’ convictions should be reversed and the indictments dismissed because the People failed to reveal they were helping the complainant procure a U visa which would allow the complainant to remain in the United States and apply for permanent residence. A U visa is available to an alien who has suffered abuse as a victim of criminal activity. The defendants have already served their sentences and have been deported:

A U visa is available to an alien who “has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity[,] . . . possesses information concerning criminal activity . . . [and] . . . has been helpful, is being helpful, or is likely to be helpful” to a Federal, State, or local law enforcement official, prosecutor, judge, or other authority prosecuting criminal activity … . * * *

To obtain a U visa from the United States Citizenship and Immigration Services, an applicant must first acquire a certification from a Federal, State, or local law enforcement official, prosecutor, judge, or other Federal, State, or local authority investigating criminal activity (see 8 USC § 1184 [p][1]). The certification must confirm that the applicant for a U visa “‘has been helpful, is being helpful, or is likely to be helpful'” in the investigation or prosecution of criminal activity … . Without a certification, the applicant cannot obtain a U visa. Law enforcement is not mandated to issue the certification … .

The U visa is a valuable benefit. Under Section 245(m) of the Act, after three years of continuous presence in the United States (in which the recipient also receives work authorization), the recipient may apply for lawful permanent residence in the United States. * * *

… [W]e cannot know what a jury would have done with further, material, impeachment arising from the U visa evidence. It might have found the U visa evidence fatally undermined [the complainant’s] credibility. We find that there is reasonable probability that had the jury considered the U visa evidence, it would have raised enough reasonable doubt to produce a different outcome. People v Flores, 2023 NY Slip Op 02768, First Dept 5-23-23

Practice Point: The People did not inform the defense they were helping the complainant procure a U visa which would allow the complainant to remain in the US and apply for permanent residence. A U visa is available to an alien who suffered abuse as a victim of criminal activity. The U-visa-information was Brady material which could have affected the outcome of the trial. The convictions were reversed and the indictments dismissed.

 

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THE TRAFFIC STOP WAS VALID, BUT THE POLICE OFFICERS SAW NOTHING TO INDICATE A WEAPON WAS IN THE CAR; THE SEARCH OF THE CAR AND SEIZURE OF A WEAPON FROM AN OPEN PURSE IN THE BACK SEAT WAS ILLEGAL (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined the police properly stopped the car in which defendant was a passenger but did not have sufficient information to justify a search of the vehicle for a weapon. A weapon was seized from an open purse in the back seat:

The police have authority to order occupants out of a vehicle in the event of a traffic violation … . Absent probable cause, the police are allowed to conduct a limited intrusion into the vehicle only if the totality of the information available supports a reasonable conclusion that there is a substantial likelihood of a weapon within the vehicle that poses an actual and specific threat to the officers’ safety … . … [T]he Court of Appeals has described this exception to the probable cause requirement as “narrow” … .

Furtive movements “suggesting that the defendant was reaching for something that might be a weapon” combined with some other suggestive factor have been determined to meet this standard … . * * *

No such actual and specific danger was shown to exist in this case. …  Defendant hesitated only briefly before rolling the window down and complying with the officer’s demands to show his hands and to step out of the vehicle. Taking a few “moments” to comply with an officer’s orders does not rise to the level of furtive or suspicious activity so as to support a finding of an actual and specific danger to officer safety  … He was frisked outside of the vehicle and found not to possess any weapons. Defendant remained in full view of the officers, his demeanor described as “relaxed”; he made eye contact and did not otherwise appear suspicious. People v Scott, 2023 NY Slip Op 02769, First Dept 5-23-23

Practice Point: There is a narrow exception to the probable cause requirement where police officers suspect a weapon may be in the car during a traffic stop. Here the evidence did not suggest the presence of the weapon. The weapon seized from an open purse in the back seat should have been suppressed.

 

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THE CONVICTION UPON WHICH DEFENDANT’S SECOND-FELONY-OFFENDER STATUS WAS BASED WAS MORE THAN 10 YEARS BEFORE THE CURRENT OFFENSE AND THE PEOPLE DID NOT DEMONSTRATE THAT ANY PORTION OF THE 10-YEAR PERIOD WAS TOLLED BY INCARCERATION; SENTENCE VACATED AND MATTER REMITTED FOR A HEARING AND RESENTENCING (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence as a second felony offender and remitting the matter for a hearing. determined the People did not submit evidence demonstrating when defendant was incarcerated such that the 10-year look-back period for the prior felony conviction could be calculated. The court noted that the issue need not be preserved for appeal:

… [D]efendant contends that he was not properly sentenced as a second felony offender. … [D]efendant was not required to preserve such a claim where, as here, the purported illegality is plain “from the face of the appellate record” … . … [W]e agree with defendant that the record reflects that his April 11, 2011 sentence on his predicate felony conviction was imposed more than 10 years before the commission of the instant offense, which occurred on July 6, 2021 … , and the People failed to meet their burden of showing that the 10-year look-back period was tolled by any periods of incarceration … . At sentencing, defendant admitted to the prior offense, but the People’s predicate felony statement did not set forth defendant’s dates of incarceration … . Since the record fails to disclose the legality of sentencing defendant as a second felony offender, the matter must be remitted for a hearing on this issue and resentencing … . People v McCall, 2023 NY Slip Op 02719, Third Dept 5-18-23

Practice Point: Here the People’s failure to submit proof of defendant’s prior incarceration made it impossible to determine whether the 10-year look-back period for a prior felony was tolled. Defendant’s sentence as a second felony offender was vacated and the matter was remitted for a hearing and resentencing.

 

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THE EVIDENCE OF PHYSICAL INJURY WAS SUFFICIENT TO SUPPORT THE ASSAULT SECOND CONVICTION (CT APP).

The Court of Appeals, reversing the appellate division, determined the evidence was sufficient to support the conviction of assault second:

The victim testified that defendant delivered a very hard blow to his face, that he felt pain, and that he experienced bleeding and swelling. Hospital records describe the victim’s pain as “aching” and indicate he was directed to take over-the-counter painkillers. Viewing the evidence in the light most favorable to the People, it was sufficient to establish physical injury for the purposes of Penal Law § 120.05 (3) … . People v Wheeler, 2023 NY Slip Op 02736. CtApp 5-18-23

Practice Point: The Court of Appeals, reversing the appellate division, found the evidence of physical injury sufficient to support the assault second conviction.

 

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THE DEFENDANT’S ACTIONS OBSERVED BY THE POLICE OFFICERS IN THIS STREET STOP DID NOT MEET THE “REASONABLE SUSPICION DEFENDANT HAD COMMITTED A CRIME OR WAS IN POSSESSION OF A WEAPON” STANDARD; THE FRISK WAS THEREFORE ILLEGAL AND THE SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, reversing the Appellate Division and dismissing the indictment, in a full-fledged opinion by Judge Wilson, and an extensive concurring opinion by Judge Rivera, determined the police did not have reasonable suspicion defendant had committed a crime or was in possession of a weapon at the time defendant was frisked. The drugs found on defendant’s person should have been suppressed:

Mr. Johnson’s [defendant’s] actions, as observed by Officer Pike, do not meet the minimum standard required to justify a stop and frisk under De Bour. Prior to the frisk, Officer Pike observed Mr. Johnson: (1) move from the driver’s seat to the passenger seat of his parked car; (2) move his upper torso back toward the driver’s seat; (3) pull up his pants and attempt to buckle his belt; and (4) appear nervous while being questioned. These circumstances do not support a reasonable view that Mr. Johnson was armed or that he had committed or was about to commit a crime. These actions “constituted [nothing] other than ‘innocuous behavior,’ sole reliance on which would impermissibly reduce the foundation for [this] intrusion to nothing but ‘whim or caprice’ ” … . People v Johnson, 2023 NY Slip Op 02734, CtApp 5-18-23

Practice Point: Here the Court of Appeals determined the defendant’s actions prior to the stop and frisk did not rise to the “reasonable suspicion” standard. The police observed defendant move to the passenger seat in his parked car, move his upper torso back toward the driver’s seat, pull up his pants and attempt to buckle his belt, and appear nervous when questioned. The stop and frisk was illegal and the seized drugs should have been suppressed.

 

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AN ANSWER OR A COMPLAINT VERIFIED BY AN ATTORNEY DOES NOT PROVE THE CONTENTS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, noted that an answer verified by an attorney (as opposed to the defendant) and a complaint verified by an attorney (as opposed to the plaintiff) do not prove the contents:

… [A]n answer verified by an attorney is insufficient to demonstrate that the defendant has a potentially meritorious defense … . …

… [A]lthough a verified complaint “may be used as the affidavit of the facts constituting the claim,” the complaint “must contain evidentiary facts from one with personal knowledge since a pleading verified by an attorney pursuant to CPLR 3020(d)(3) is insufficient to establish its merits” … . Since the complaint in this case was verified only by the plaintiff’s attorney, and not by the plaintiff, the plaintiff could not rely on its contents to supply proof of the facts constituting the claim. Pemberton v Montoya, 2023 NY Slip Op 02674, Second Dept 5-17-23

Practice Point: Answers and complaints verified by the attorney and not by the party do not prove the contents.

 

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