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THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; THE FACT THAT THE VICTIM WAS SHOT IN THE BACK DURING A SHOOTOUT WAS NOT ENOUGH (FIRST DEPT).

The First Department, exercising its interest of justice jurisdiction, reversing defendant’s manslaughter conviction, determined the People did not disprove defendant’s justification defense. The fact that, during a shoot-out, the victim was shot in the back was not enough:

“When a defense of justification is raised, the People must prove beyond a reasonable doubt that [the] defendant’s conduct was not justified. In other words, the People must demonstrate beyond a reasonable doubt that the defendant did not believe deadly force was necessary or that a reasonable person in the same situation would not have perceived that deadly force was necessary” … . In this case, the evidence regarding which man initiated the gunfire was equivocal at best. Valentin, the lone eyewitness, testified that she did not know who fired first. Footage from numerous surveillance cameras, each of which captured only part of the scene, did not answer that question, nor did the ballistic evidence. There was no evidence that defendant approached displaying a firearm. Rather, the evidence strongly suggests that [the victim]  was the first person to do so.

In this case, we do not believe that the mere fact that the victim was shot in the back establishes that defendant was the initial aggressor, or that he did not reasonably believe that deadly physical force was still being used against him at the time he fired the fatal shot. Under the totality of the evidence, the fact that [the victim]  had his back turned to defendant at the moment when he was shot does not establish that he was withdrawing from the gunfight or running away. People v Skeeter, 2023 NY Slip Op 02946, First Dept 6-1-23

Practice Point: When the justification defense is raised, the People must disprove it beyond a reasonable doubt. Here the fact that the victim was shot in the back during a shoot-out was not enough to disprove the defense.

 

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PLAINTIFF NURSE WAS ASSAULTED BY A PATIENT IN DEFENDANT’S HOSPITAL; SHE WAS ENTITLED TO DISCOVERY OF ANY NON-PRIVILEGED INFORMATION ABOUT THE PATIENT’S AGGRESSIVE BEHAVIOR IN HIS MEDICAL RECORDS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to an in camera review her assailant’s (Downing’s) medical records to discovery of any non-privileged references to his aggressive behavior. Plaintiff was a nurse assigned to work in defendant’s hospital when she was assaulted by defendant patient:

Information relating to the nature of medical treatment and the diagnoses made, including “information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms,” is privileged (…see CPLR 4504; Mental Hygiene Law § 33.13[c][1] …). However, “[t]he physician-patient privilege generally does not extend to information obtained outside the realms of medical diagnosis and treatment” … .

Here, the plaintiff seeks information as to any prior aggressive or violent acts by Downing. Information of a nonmedical nature regarding prior aggressive or violent acts is not privileged … . Accordingly, we remit the matter to the Supreme Court, Queens County, for an in camera review of the subject hospital records, to determine which records contain nonprivileged information that is subject to disclosure, and thereafter disclosure of such records … . Gooden v New York City Health & Hosps. Corp., 2023 NY Slip Op 02867, Second Dept 5-31-23

Practice Point: Here a nurse injured by a hospital patient was entitled to any non-privileged information about the patient’s aggressive behavior in the patient’s medical records. An in camera review of the records was ordered.

 

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THE AWARD OF COUNSEL FEES TO MOTHER IN THIS MODIFICATION OF CUSTODY PROCEEDING WAS AN ABUSE OF DISCRETION; FATHER WAS NOT GIVEN ADEQUATE NOTICE OF ANY FRIVOLOUS CONDUCT; THE FINANCIAL CIRCUMSTANCES OF THE PARTIES WERE NOT CONSIDERED; THE RELEVANT REGULATORY AND STATUTORY CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have awarded counsel fees to mother. Mother brought an action for modification of a custody order on the ground father had lied about the method of transportation he used to go to Alabama with the child. Apparently father told mother they were going to drive, when in fact they flew. Mother was awarded $25,000 in counsel fees:

… Supreme Court permitted the mother to make a written application for counsel fees, [but] the court did not state whether the application should be made under 22 NYCRR 130-1.1….[T]he court did not … make a finding that the father’s conduct was “frivolous” within the meaning of 22 NYCRR 130-1.1. … [T]o the extent the court granted the mother’s application for an award of counsel fees pursuant to 22 NYCRR 130-1.1, the father did not receive sufficient notice of the alleged frivolous conduct, and, therefore, was not given “a reasonable opportunity to be heard” … .

… [T]o the extent that the Supreme Court granted the mother’s application for an award of counsel fees under 22 NYCRR 130-1.1, the court improperly based its determination to grant the application, in part, on the father’s act of lying to the mother about flying to Alabama with the parties’ child, since this conduct occurred outside of the proceeding before the court … . * * *

… [T]o the extent that the Supreme Court granted the mother’s application for an award of counsel fees pursuant to Domestic Relations Law § 237(b), the court did not adequately consider the disparate financial circumstances of the parties … . LeBoeuf v Greene, 2023 NY Slip Op 02870, Second Dept 5-31-23

Practice Point: Here the award of counsel fees was not appropriate under “frivolous conduct” or “financial circumstances” criteria. The relevant regulatory and statutory requirements for a counsel-fees award are explained in some depth.

 

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FAMILY COURT SHOULD HAVE APPOINTED MOTHER GUARDIAN OF THE JUVENILE, DISPENSED WITH SERVICE ON FATHER, AND MADE FINDINGS TO ALLOW THE JUVENILE TO APPLY FOR SPECIAL JUVENILE IMMIGRATION STATUS (SJIS); ALL OF THE COMPLICATED, INTERTWINED STATUTORY LAW EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother should have been appointed guardian of the juvenile and the court should have made findings to allow the juvenile to apply for special immigration juvenile status (SIJS). Family Court should not have required a birth certificate to prove the juvenile’s age:

Family Court Act § 661(a) permits the Family Court to appoint a guardian for a youth between the ages of 18 and 21 in order to establish that the youth is “dependent on a juvenile court” (8 USC § 1101[a][27][J][i]) for purposes of an application for SIJS … . The provisions of the Surrogate’s Court Procedure Act (hereinafter SCPA) apply to the extent they are applicable to guardianship of the person of a minor or infant and do not conflict with the provisions of the Family Court Act … . …

… [T]here is no express requirement to submit certified copies of birth certificates in a proceeding such as this pursuant to Family Court Act § 661(a) … . … [T]he Family Court is only required to ascertain the juvenile’s age, and there is no statutory requirement that a petitioner submit any particular evidence to establish the juvenile’s age (see id.; SCPA 1706[1]). Here, for purposes of this proceeding pursuant to Family Court Act § 661(a), the record supports a finding that the child is under the age of 21 … . …

Family Court should have granted the guardianship petition and the mother’s motions to dispense with service on the father and for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Matter of Joel A. A. R. (Eddy A. A. G.), 2023 NY Slip Op 02881, Second Dept 5-31-23

Practice Point: Here the complicated, intertwined statutory law controlling special juvenile immigration status (SJIS), as well as the related evidentiary requirements in Family Court,  are explained in some depth.

 

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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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