Judges – Page 108 – New York Appellate Digest

Appeals, Criminal Law, Judges, Sex Offender Registration Act (SORA)

SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE.

The Third Department, reversing County Court’s risk level assessment, determined defendant was not given a meaningful opportunity to respond to the assessment of points:

A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment … . Not only did County Court fail to give defendant notice of its intention to sua sponte assess points for the category of use of violence, it affirmatively misled defendant by its assurance that it had already “made a decision . . . regarding a point score,” which included no assignment of points for that risk factor. Accordingly, defendant was denied due process … . Considering the fact that defendant was never aware of the potential of the assignment of such points until a point in time where he no longer had an opportunity to object — his only remaining opportunity to be heard being explicitly limited to arguing for a downward departure — he need not have taken any further action to preserve the issue for our review … . People v Griest, 2016 NY Slip Op 06907, 33rd Dept 10-20-16

CRIMINAL LAW (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE)/SEX OFFENDER REGISTRATION ACT (SORA) (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE)/APPEALS (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE, NO FURTHER ACTION NECESSARY TO PRESERVE ISSUE FOR APPEAL)

October 20, 2016

Judges

JUDGE’S EGREGIOUS BEHAVIOR WARRANTED REMOVAL FROM OFFICE.

The Court of Appeals determined the petitioner, a Town and Village Justice, should be removed from office for what might be termed “bullying” while on and off the bench:

The misconduct giving rise to that concession “qualifies as ‘truly egregious'” … . The record reflects that, among other things, petitioner used a sanction — a tool meant to “shield” from frivolous conduct — as a “sword” to punish a legal services organization for a perceived slight in an inexcusable and patently improper way (see 22 NYCRR 130-1.1 [a] [authorizing the imposition of sanctions, but precluding town and village courts from applying such penalties]). The record is also replete with instances in which petitioner used his office and standing as a platform from which to bully and to intimidate. To that end, it is undisputed that petitioner engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament — perhaps most significantly, by engaging in a physical altercation with a student worker.

Those actions are representative of an even more serious problem. Petitioner — in what allegedly was a grossly misguided attempt to motivate — repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process. …

Significantly, too, petitioner’s hectoring extended beyond the courthouse. In what ostensibly was an attempt to undermine a former co-Judge and an apparent political adversary, petitioner willfully injected himself into the political process involving the election of an office other than his own. Matter of Simon, 2016 NY Slip Op 06855, CtApp 10-20-16

JUDGES (JUDGE’S EGREGIOUS BEHAVIOR WARRANTED REMOVAL FROM OFFICE)

October 20, 2016

Criminal Law, Evidence, Judges

DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE.

The Second Department determined the People were entitled to a writ of prohibition re: a County Court Judge’s order that they produce the names of all lab personnel whose initials appeared on lab report concerning DNA test results. The People had notified defense counsel persons at the lab had cheated on an exam for certification for use of a DNA software program. The software program was not used in defendant’s case. The People provided defense counsel with the names of the two persons implicated in the cheating whose initials appeared on the lab report. Defense counsel requested the names of all the persons whose initials were on the report. County Court granted that request:

…[T]he only relevant inquiry is whether or not [the judge’s] actions exceeded his authorized powers … . We conclude that Judge De Rosa exceeded his authority by directing the People to make available to the defendant the full names corresponding to the initials that appear on the subject laboratory reports … . Nothing contained in CPL 240.20 imposes an obligation on the People to respond to the defendant’s questions concerning notations that appear in discoverable materials, or to affirmatively create or compile material, or obtain it from sources beyond their control … . Matter of Hoovler v De Rosa, 2016 NY Slip Op 06830, 2nd Dept 10-19-16

JUDGES (WRIT OF PROHIBITION, DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE)/CRIMINAL LAW (EVIDENCE, WRIT OF PROHIBITION, DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE)/EVIDENCE (CRIMINAL LAW, WRIT OF PROHIBITION, DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE)/PROHIBITION, WRIT OF (CRIMINAL LAW, EVIDENCE, DEFENSE COUNSEL NOT ENTITLED TO FULL NAMES OF ALL PERSONS WHOSE INITIALS APPEAR ON A DNA LAB REPORT; WRIT OF PROHIBITION ISSUED RE: JUDGE WHO ORDERED DISCLOSURE

October 19, 2016

Civil Procedure, Judges, Medical Malpractice, Negligence

SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS.

The Second Department, although agreeing with Supreme Court that aspects the damages award in this medical malpractice case were excessive, determined Supreme Court did not have the power to simply reduce the damages amounts. Rather, Supreme Court should have granted the motion to set aside the verdict and ordered a new trial unless the parties stipulate to the reduced damages:

… [I]t was procedurally improper for the Supreme Court to enter a judgment reducing the awards for future medical care, future medications, future physical and occupational therapy from age 21, future speech therapy from age 21, future medical equipment, future medical supplies, future loss of earning capacity, past pain and suffering, and future pain and suffering without granting a new trial on those issues unless the plaintiffs stipulated to reduce the verdict … . Reilly v St. Charles Hosp. & Rehabilitation Ctr., 2016 NY Slip Op 06485, 2nd Dept 10-5-16

CIVIL PROCEDURE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/NEGLIGENCE (MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/MEDICAL MALPRACTICE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/DAMAGES (MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/VERDICT, MOTION TO SET ASIDE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)

October 5, 2016

Foreclosure, Judges

FALSE INFORMATION IN ATTORNEY AFFIDAVIT JUSTIFIED DENIAL OF MOTION FOR JUDGMENT OF FORECLOSURE BUT NOT DISMISSAL.

The Second Department determined false information in the attorney affidavit submitted by the plaintiff bank warranted denial of the motion for a judgment of foreclosure, but did not warrant dismissal of the complaint with prejudice and cancellation of the notice of pendency:

The Administrative Order requires the attorney to attest that the papers “contain no false statements of fact or law” (Administrative Order 548/10). A plaintiff’s failure to file the mandatory attorney affirmation in compliance with the Administrative Order warrants denial of a motion for a judgment of foreclosure and sale … . Here, since the subject affirmation contained an apparently false statement of fact, the Supreme Court providently exercised its discretion in denying the motion for a judgment of foreclosure and sale without prejudice to renew (see CPLR 2001).

However, the Supreme Court erred in, sua sponte, directing the dismissal of the complaint with prejudice and in directing the cancellation of the notice of pendency. “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, there were no extraordinary circumstances … . Downey Sav. & Loan Assn., F.A. v Trujillo, 2016 NY Slip Op 06058, 2nd Dept 9-21-16

FORECLOSURE (FALSE INFORMATION IN ATTORNEY AFFIDAVIT JUSTIFIED DENIAL OF MOTION FOR JUDGMENT OF FORECLOSURE BUT NOT DISMISSAL)/ATTORNEYS (FALSE INFORMATION IN ATTORNEY AFFIDAVIT JUSTIFIED DENIAL OF MOTION FOR JUDGMENT OF FORECLOSURE BUT NOT DISMISSAL)

September 21, 2016

Family Law, Judges

MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING.

The Third Department determined Family Court should not have, sua sponte, dismissed mother’s pro se petition for custody modification without a hearing:

“‘In any modification proceeding, the threshold issue is whether there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the child[]'” … . While an evidentiary hearing is not required in every case, a hearing is generally “necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child[]’s best interests” … . In determining whether a pro se petitioner made a sufficient evidentiary showing to warrant a hearing, we construe the pleadings liberally and afford the petitioner the benefit of every favorable inference … .

In her pro se petition, the mother alleged that she had moved into an apartment with the child’s maternal grandmother, had enrolled as a full-time student and was attending “[a]lcohol counseling.” Inasmuch as the mother’s alcohol abuse was a primary factor in Family Court’s January 2015 custody determination, the mother’s factual allegations of improvement, construed liberally and if established after a hearing, could afford a basis for awarding the mother increased parenting time, unsupervised parenting time and/or access to the child’s medical and educational records. Accordingly, we find that Family Court erred in dismissing the mother’s petition without a hearing … . Matter of Miller v Bush, 2016 NY Slip Op 05413, 3rd Dept 7-7-16

FAMILY LAW (MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING)/CUSTODY (MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING)/MODIFICATION OF CUSTODY (MOTHER’S PRO SE PETITION FOR CUSTODY MODIFICATION SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE BY FAMILY COURT WITHOUT A HEARING)

July 7, 2016

Family Law, Judges, Public Health Law

JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS.

The Second Department determined the Family Court judge was biased against mother who sought to prevent her children from being immunized for religious reasons:

Public Health Law § 2164, which requires that an adequate dose or doses of an immunizing agent against certain diseases be administered to children at various intervals, does not apply to children whose parent or parents hold genuine and sincere religious beliefs which are contrary to the practices required therein (see Public Health Law § 2164[9]). When a parent seeks to assert a religious objection to immunization under Public Health Law § 2164(9), he or she must prove, by a preponderance of the evidence, that his or her opposition to immunization ” stems from genuinely-held religious beliefs'” … . * * *

Here, the record demonstrates that the Family Court had a predetermined outcome of the case in mind during the hearing. In addition to certain comments made by the court regarding the sincerity of the mother’s religious beliefs, the court took an adversarial stance, aggressively cross-examined the mother, continually interrupted her testimony, mocked her beliefs, and generally demonstrated bias. The Family Court’s bias unjustly affected the result of the hearing to the detriment of the mother. Matter of Baby Girl Z. (Yaroslava Z.), 2016 NY Slip Op 04425, 2nd Dept 6-8-16

FAMILY LAW (JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS)/PUBLIC HEALTH LAW (JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS)/JUDGES (JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS)/PUBLIC HEALTH LAW (JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS)/IMMUNIZATION (JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS)/RELIGION (JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS)

June 8, 2016

Judges

JUDGES NOT ENTITLED TO DAMAGES BASED UPON INADEQUATE COMPENSATION.

The Court of Appeals determined present and retired judges were not entitled to damages based on inadequate compensation during the years legislation considering judicial compensation was improperly linked to unrelated policy initiatives. Although the Court of Appeals struck down the practice, called linkage, as a violation of the separation of powers, the court did not make the finding that judicial compensation was in fact too low during those years. To do so and award damages would intrude on the legislature's budgetary powers:

…[W]e suggested that money damages would be an inappropriate form of relief from the State's unconstitutional linkage practice because any mandate that the State pay money damages would, as a practical matter, be tantamount to a directive to increase judicial compensation in a manner that would arrogate the legislative branch's budgetary powers to the judiciary. Thus, we observed that, in fashioning a remedy, “deference to the Legislature — which possesses the constitutional authority to budget and appropriate — is necessary” … and that “whether judicial compensation should be adjusted, and by how much, is within the province of the Legislature” … . Larabee v Governor of the State of N.Y., 2016 NY Slip Op 03646, CtApp 5-10-16

JUDGES (JUDGES NOT ENTITLED TO DAMAGES BASED UPON INADEQUATE COMPENSATION)

May 10, 2016

Criminal Law, Judges

TRIAL JUDGE GAVE TOO MUCH ADVICE TO THE PROSECUTOR ON THE ADMISSION AND USE OF EVIDENCE, NEW TRIAL ORDERED.

The Third Department reversed defendant's conviction because the trial judge gave excessive procedural advice to the prosecutor (ADA). During several sidebars, the judge explained to the ADA how to lay a proper foundation for the admission of evidence and how to use evidence to refresh a witness's recollection. The judge's well-intentioned assistance was deemed to have created the perception the prosecution received a tactical advantage:

During the course of the trial, the ADA in question demonstrated difficulty in laying the proper foundation for the admission into evidence of certain photographs and bank records and in utilizing a particular document to refresh a witness's recollection. In response, County Court conducted various sidebars, during the course of which the court, among other things, explained the nature of defense counsel's objections, outlined the questions that the ADA needed to ask of the testifying witnesses, referred the ADA to a certain evidentiary treatise and afforded him a recess in order to consult and review the appropriate section thereof. Without further belaboring the point, suffice it to say that our review of the record confirms what County Court itself acknowledged — namely, that in attempting to “explain[] some of the law” and in an effort to avoid portraying defense counsel as “obstructionist,” it “explained one thing too many, in all fairness.” As County Court's assistance in this regard — although well-intentioned — arguably created the perception that the People were receiving an unfair tactical advantage, we are persuaded that this matter should be remitted for a new trial … . People v Kocsis, 2016 NY Slip Op 02480, 3rd Dept 3-31-16

CRIMINAL LAW (TRIAL JUDGE GAVE TOO MUCH ADVICE TO THE PROSECUTOR ON THE ADMISSION AND USE OF EVIDENCE, NEW TRIAL ORDERED)/JUDGES (CRIMINAL LAW, TRIAL JUDGE GAVE TOO MUCH ADVICE TO THE PROSECUTOR ON THE ADMISSION AND USE OF EVIDENCE, NEW TRIAL ORDERED)

March 31, 2016

Criminal Law, Evidence, Judges

MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT’S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER.

The Fourth Department determined the denial of defendant's midtrial motion to suppress evidence seized pursuant to a search warrant should not have been denied without a hearing. The search warrant application was not provided to the defense until after the trial had begun. The application indicated probable cause for the warrant was gained through a prior “security sweep” of the building:

In determining whether a hearing is required pursuant to CPL 710.60, “the sufficiency of defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant's access to information” … . We note that the motion was not required to be made in writing, as would be required for a pretrial motion to suppress (see CPL 710.60 [1]) and, because it was properly “made orally in open court” during trial, the court was required, “where necessary, [to] conduct a hearing as provided in [CPL 710.60 (4)], out of the presence of the jury if any, and make findings of fact essential to the determination of the motion” (CPL 710.60 [5]).

We conclude that a hearing was necessary herein. Defendant's allegation that the search was of his home was sufficient “to demonstrate a personal legitimate expectation of privacy in the searched premises” … . * * * … [T]he People's current contention [that the sweep was justified by exigent circumstances] … ” raise[s] a factual dispute on a material point which must be resolved before the court can decide the legal issue' of whether evidence was obtained in a constitutionally permissible manner” … . Thus, before ruling on the motion, “it was incumbent upon [Supreme C]ourt to conduct a hearing to determine whether there were sufficient exigent circumstances [or other factors such as an ongoing emergency situation that would] justify the . . . warrantless entry” into the building … . Therefore, we hold the case, reserve decision, and remit the matter to Supreme Court for a hearing on defendant's midtrial suppression motion … . People v Samuel, 2016 NY Slip Op 02222, 4th Dept 3-25-16

CRIMINAL LAW (MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)/EVIDENCE (CRIMINAL LAW, MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)/SUPPRESSION (CRIMINAL LAW, MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)/SEARCHES AND SEIZURES (MIDTRIAL ORAL MOTION TO SUPPRESS, MADE AFTER THE PEOPLE BELATEDLY PROVIDED THE SEARCH WARRANT APPLICATION, REQUIRED A HEARING; COURT'S SUA SPONTE DENIAL OF THE MOTION WAS IMPROPER)

March 25, 2016