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SUPREME COURT’S VACATION OF THE ARBITRATION AWARD AS “IRRATIONAL” REVERSED, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitrator’s award should not have been vacated as “irrational.” Petitioner, a registered nurse, did not take her first dose of the COVID vaccine by the deadline imposed by her employer. She was suspended and requested an arbitration in accordance with the collective bargaining agreement (CBA). The arbitrator found that failure to take the vaccine was misconduct and petitioner’s employment was terminated:

A court’s authority to vacate an arbitrator’s award is limited to the grounds set forth in CPLR 7511 (b), which permits vacatur of an award where the arbitrator, as relevant here, “exceed[s] [their] power” … by issuing an ” ‘award [that] violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’ ” … .

Where … the parties agree to submit their dispute to an arbitrator pursuant to a collective bargaining agreement, “[c]ourts are bound by an arbitrator’s factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice” … . * * *

… [T]he court erred in vacating the award on the ground that it was irrational. ” ‘An award is irrational if there is no proof whatever to justify the award’ ” … . Where, however, “an arbitrator ‘offer[s] even a barely colorable justification for the outcome reached,’ the arbitration award must be upheld” … . Here, inasmuch as it was undisputed that SUNY Upstate directed petitioner to receive the vaccine by a date certain, that it apprised her that her continued employment was dependent upon her compliance, and that petitioner refused to be vaccinated by the required date, the court erred in concluding that the arbitrator’s award was irrational. Matter of Spence (State Univ. of N.Y.), 2024 NY Slip Op 04677, Fourth Dept 9-27-24

Practice Point: If there is “even a barely colorable justification” for an arbitrator’s award, the courts won’t tamper with it. Here a nurse lost her job because she wouldn’t take the COVID vaccine. The COVID vaccine regulation which was the basis for the misconduct charge against petitioner was repealed just before the arbitrator decided the matter, but the repeal was not considered by the arbitrator. Because there was a valid basis for the arbitrator’s award, it could not be vacated as “irrational.”

 

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THE SENTENCING JUDGE MUST “PRONOUNCE SENTENCE ON EACH COUNT;” MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department affirmed defendant’s conviction but noted that the judge should have “pronounced sentence on each count” and remitted the matter for resentencing:

… [T]he court erred in failing to “pronounce sentence on each count” of the conviction (CPL 380.20 …).  Although the uniform sentence and commitment form states that defendant was sentenced on each count to concurrent terms of incarceration of five years with three years of postrelease supervision, the court in fact did not “impose a sentence for each count of which defendant was convicted” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing.  People v Gause, 2024 NY Slip Op 04686, Fourth Dept 9-27-24

Practice Point: Sentence must be “pronounced on each count.”

 

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THE APPELLATE COURTS HAVE THE “INTEREST OF JUSTICE” POWER TO REDUCE AN OTHERWISE LEGAL AND APPROPRIATE SENTENCE WHEN THE DEFENDANT IS SERIOUSLY MENTALLY ILL; HERE THE MAJORITY CHOSE NOT TO REDUCE THE SENTENCE; A STRONG TWO-JUSTICE DISSENT ARGUED FOR A REDUCTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, over an extensive two-justice dissent, affirmed defendant’s conviction by guilty plea to attempted murder and declined to reduce the eight-year sentence in the interest of justice. Defendant is seriously mentally ill and has endured almost indescribable hardships throughout his life, which are detailed in the dissent. The underlying question here is, given the prison system’s inability to properly care for the seriously mentally ill, should the appellate court exercise its power to reduce this defendant’s sentence in the interest of justice. The majority answered “no” and the dissent argued “yes.” The opinion is far too detailed to fairly summarize here:

From the dissent:

… [R]esearch … demonstrates that people with serious psychiatric needs are more likely to be violently victimized and housed in segregation while in prison. That research also shows that the vast majority of people with mental illness in jails and prisons do not receive care, and for those that do, the care is generally inadequate.… This is of particular concern given [defendant’s] history of suicide attempts … .

This case raises an important question: What is the utility of extended incarceration under the present circumstances? Specifically, where, among other things, the offense occurred during a time when [defendant] had been unmedicated for five days and, moreover, the record suggests—as evidenced by [defendant’s] comments to the police when arrested and a subsequent mental examination—that his severe mental illness contributed to what is his first and only criminal conviction. People v Paulino, 2024 NY Slip Op 04625, First Dept 9-26-24

Practice Point: The appellate courts have the “interest of justice” power to reduce an otherwise appropriate sentence based upon a defendant’s mental illness.

 

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DEFENDANT WAS ENTITLED TO NOTICE COUNTY COURT INTENDED TO RELY ON FAMILY COURT RECORDS WHEN CONSIDERING DEFENDANT’S APPLICATION FOR RECLASSIFICATION AS A LEVEL-ONE SEX OFFENDER; THE THIRD DEPARTMENT NOTED THAT THE PROPER INQUIRY IS WHETHER RECLASSIFICATION IS WARRANTED BY A CHANGE IN CONDITIONS, NOT WHETHER THERE IS SUPPORT FOR THE INITIAL LEVEL-TWO CLASSIFICATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to be notified of County Court’s intention to rely on Family Court records in considering defendant’s application to be reclassified as a level one sex offender. The matter was remitted for a new hearing:

Upon his release from incarceration in 2003, defendant was classified as a risk level two sex offender and designated a sexually violent offender. In 2020, defendant applied, for the fifth time, for a modification of his risk level classification pursuant to Correction Law § 168-o (2), seeking to be reclassified as a risk level one sex offender as his conditions have changed subsequent to the initial risk level classification given, among other things, that he has remained arrest free, successfully completed sex offender treatment while incarcerated and gained custody of his daughter, which helped him understand the impact of his underlying criminal actions. * * *

In discrediting defendant’s sworn statements in support of his application and in finding his statements to be misleading, County Court relied heavily upon various Family Court proceedings, including neglect proceedings as far back as 2012, and a family offense petition containing allegations against defendant [*2]that were subsequently withdrawn. The court detailed the allegations in the petitions, finding that the allegations contradicted defendant’s sworn statements in his application and that, by excluding such information from his sworn affidavit, defendant attempted to mislead the court. Defendant was not given an opportunity to respond to or defend himself against consideration of such information. * * *

… Contrary to County Court’s finding here, the proper level of review is not whether there is clear and convincing evidence to support defendant’s initial risk level classification, but rather, whether defendant has met his burden of establishing by clear and convincing evidence that a modification of his risk assessment level is warranted based upon a change in conditions. People v Johns, 2024 NY Slip Op 04640, Third Dept 9-26-24

Practice Point: In a SORA risk-level assessment proceeding, a defendant is entitled to timely notice of the court’s intention to rely on additional information of which defendant had not been made aware, here Family Court records.

Practice Point: When a defendant applies for reclassification of his sex offender risk level status (here from level two to level one), the court’s inquiry should be confined to whether a change in conditions warrants reclassification, not whether the original classification was justified.

 

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COUNTY COURT, SUA SPONTE, IN GRANTING THE PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE, RELIED ON FACTORS ABOUT WHICH THE DEFENDANT WAS NOT NOTIFIED BEFORE THE SORA HEARING; MATTER REMITTED FOR A NEW HEARING AFTER PROPER NOTICE (THIRD DEPT).

The Third Department, reversing County Court, determined the SORA court should not have, sua sponte, relied on factors for which defendant was not provided notice in granting the People’s request for an upward department. The matter was remitted:

County Court sua sponte relied upon certain additional factors for which defendant was not provided any notice — namely, that the points assessed under factor 4 did not adequately account for defendant’s prolonged course of conduct that continued over 21 months; that defendant was not scored any points under factor 7, which did not take into account defendant’s relationship with the mother of the victim that was arguably established or promoted for the primary purpose of victimizing the mother’s child; and that defendant’s psychiatric conditions and history increase his risk of reoffending.

With regard to these three additional areas of concern noted by County Court, “defendant was entitled to a sufficient opportunity to consider and muster evidence in opposition to the request for an upward departure” on the specific bases upon which County Court would rely in considering that relief … . “As defendant did not have notice or a fair opportunity to present arguments and evidence pertaining to those factors in the context of whether upward departure from the presumptive classification was warranted, the matter must be remanded for a new hearing, upon proper notice to defendant of the justifications relied upon by the People [and/or court] specific to their request for such relief” … . People v Furgeson, 2024 NY Slip Op 04644, Third Dept 9-26-24

Practice Point: A defendant is entitled to prior notice of the factors which will be considered by the court during a SORA risk-level assessment proceeding.​

 

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A DEFENDANT, AS PART OF A NEGOTIATED PLEA AGREEMENT, MAY WAIVE A HEARING SEEKING A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dowling, affirming defendant’s sentence after a guilty plea, determined that a hearing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) seeking a reduced sentence can be waived. Therefore defendant’s negotiated plea agreement, which required her waiver of a DVSLA hearing, was valid:

… Penal Law § 60.12 contains no language requiring a sentencing court to hold a DVSJA hearing in every case containing allegations that the defendant is a victim of domestic violence, regardless of whether a hearing was requested, prior to announcing sentence. A defendant wishing to avail himself or herself of the possibility of a reduced sentence must instead request a DVSJA hearing to determine his or her eligibility before the sentencing court … . Where a DVSJA hearing is held, Penal Law § 60.12 provides that the court “may” apply the alternative sentencing scheme if the stated factors are established by the defendant. This permissive language reflects the Legislature’s intent that sentencing under Penal Law § 60.12 be an option exercised in the sentencing court’s discretion … . People v Hudson, 2024 NY Slip Op 04571, Second Dept 9-25-24

Practice Point: As part of a negotiated plea agreement, a defendant may waive a DVSJA reduced-sentence-eligibility hearing.

 

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THE MAJORITY HELD DEFENDANT, BY APPROACHING A JUROR AT THE JUROR’S HOME DURING DELIBERATIONS, FORFEITED HIS RIGHT TO A TRIAL BY A JURY OF 12; OVER A DEFENSE MOTION FOR A MISTRIAL, DEFENDANT WAS CONVICTED BY A JURY OF 11 AND THE MAJORITY AFFIRMED; THERE WAS A STRONG DISSENT (SECOND DEPT).

The Second Department, in a comprehensive decision discussing a defendant’s constitutional right to a trial by a jury of 12, over a dissent, determined defendant had forfeited his right to a 12-member jury by approaching a juror at the juror’s home as deliberations were proceeding. Over a defense motion for a mistrial, the trial judge ordered the jury to continue deliberations with 11 jurors. Defendant was convicted:

From the dissent:

… I respectfully disagree with the conclusion of my colleagues in the majority that the defendant’s New York State constitutional rights were not violated upon permitting the jury to proceed with deliberation and conviction of the defendant by an 11-member jury.

… [T]he New York State Constitution specifically guarantees defendants a right to a jury of 12 (see NY Const, art I, § 2; art VI, § 18; …). New York Constitution, article I, § 2 describes the right to a trial by jury as “inviolate forever” and requires the waiver of a jury trial to be achieved by “written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense.” … [T]he Court of Appeals has determined that a defendant may, upon a written waiver executed in the manner specified by the State Constitution, consent to a jury of 11 if a deliberating juror becomes incapacitated and no alternate juror is available … * * *

Here, there is no dispute that the defendant’s conduct was egregious and unacceptable. He feigned an illness so that he could approach a juror, at the juror’s home, clearly in an attempt to influence his trial. While the defendant should not be permitted to “tak[e] advantage of his . . . own wrongdoing” … , I believe it was error for the Supreme Court to utilize the “extreme, last-resort analysis” of denying the defendant his inviolate right to a jury of 12 before considering alternate sanctions for this egregious behavior … . People v Sargeant, 2024 NY Slip Op 04580, Second Dept 9-25-24

Practice Point: Here the defendant was deemed to have forfeited his right to a trial by a jury of 12 by approaching a juror at the juror’s home during deliberations. Defendant’s conviction by a jury of 11 was affirmed over a strong dissent.

 

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DEFENDANT’S MENTAL ILLNESS WARRANTED REDUCING DEFENDANT’S SENTENCE FOR ROBBERY TO THE MINIMUM, STRONG DISSENT (FIRST DEPT).

The First Department, reducing defendant’s sentence to the minimum for robbery, in a full-fledged opinion by Justice Gesmer, over a strong dissent, determined defendant’s (Mr. Sparks’) mental illness warranted a sentence reduction:

… [C]ontinued incarceration of Mr. Sparks serves none of the objectives of criminal punishment. In order to best protect the public, Mr. Sparks must get appropriate mental health treatment to rehabilitate him to a healthier mental state. His 12 years of imprisonment has only served to exacerbate his mental difficulties. There is no reason to believe that further incarceration will rehabilitate him, and the record clearly demonstrates that Mr. Sparks needs rehabilitation, not punitive incarceration.

Treating incarceration as the default response for individuals like Mr. Sparks has outsized deleterious consequences that, ultimately, make our communities less safe. As Chief Justice Wilson noted in his concurring opinion in People v Greene, “the cycle of incarceration further destabilizes these individuals; mental health treatment in prison is costlier than community-based treatment; individuals with mental illness are at greater risk of detention in prison and extended incarceration; prison mental health resources are often inadequate; and individuals living with mental illness face greater risk of harm and abuse while behind bars” (41 NY3d 950, 954 [2024] [Wilson, J. concurring]). While Greene involved a nonserious crime, the principle remains: default incarceration for crimes caused by mental illness is antithetical to the interests of our penal system. Deterrence cannot be accomplished for a person who was delusional at the time of a crime; and punishment for a person operating under delusions is not just. People v Sparks, 2024 NY Slip Op 04488, First Dept 9-19-24

Practice Point: The court here made the point that incarceration may not be the appropriate response for the mentally ill. The court noted that it has the power to reduce a defendant’s sentence for a violent crime, even when the defendant pleads guilty, based upon the defendant’s mental health.

 

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FAMILY COURT ACT SECTION 1028 REQUIRES THAT THE COURT EXPEDITE A HEARING ON MOTHER’S PETITION TO HAVE HER CHILDREN RETURNED TO HER; HERE THE HEARING WAS STARTED WITHIN THREE DAYS OF THE APPLICATION AS REQUIRED BUT WAS THEREAFTER ADJOURNED SEVERAL TIMES OVER A PERIOD OF MONTHS, A VIOLATION OF THE STATUTE (FIRST DEPT).

The First Department, ordering Family Court to expedite a Family Court Act Section 1028 hearing on mother’s application to have her children returned to her, determined the adjournments of the continuation of the hearing over a period of months violated section 1028:

Family Court Act § 1028 “provides for an expedited hearing to determine whether a child who has been temporarily removed from a parent’s care and custody should be reunited with that parent pending the ultimate determination of the child protective proceeding” … . Upon an application of a parent whose child has been temporarily removed, “[e]xcept for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned” … .

… [A]lthough the 1028 hearing commenced within three court days of the mother’s application, it did not proceed expeditiously. It is currently calendared with continued hearing dates through late October 2024, at which time the infant subject children will have spent more than half their lives in foster care. … The plain language of the statute requires expediency. Family Court Act § 1028 is distinguishable from other sections of article 10 wherein those sections call for hearings to be conducted within the Family Court’s discretion … . No such discretion is provided by the plain language of Family Court Act § 1028.

Under the specific time constraints detailed by the plain language of Family Court Act § 1028 and given the potential and persistent harms of family separation, the mother is entitled to prompt judicial review of the children’s removal “measured in hours and days, not weeks and months” … . Conducting this 1028 hearing over a period of 30 minutes of hearing time scheduled in March, four hours scheduled in April, three hours in May, and four hours in June cannot be deemed prompt or expeditious judicial review. Matter of Emmanuel C.F. (Patrice M. D. F.), 2024 NY Slip Op 04482, First Dept 9-19-24

Practice Point: Family Court does not have the discretion to keep adjourning a Family Court Act 1028 hearing on mother’s petition to have her children returned to her. Mother is entitled, by the terms of the statute, to an expedited hearing.

 

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THE COVID-19 TOLLS AND THE COURT’S DELAY IN SIGNING THE ORDER TO SHOW CAUSE PROVIDED A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM IN THIS BUS ACCIDENT CASE; THE POLICE REPORT TIMELY NOTIFIED THE CITY OF THE RELEVANT FACTS; THE MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioners’ motion for leave to serve a late notice of claim in this bus accident case should have been granted. The COVID-19 tolls, and the court’s delay in signing the order to show cause, provided a reasonable excuse and the police report timely notified the city of the relevant facts:

In determining whether to grant a petition for leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether “(1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits” … .

Here the petitioner demonstrated a reasonable excuse for the delay, i.e., the COVID-19 pandemic, the tolls resulting therefrom, and the delay by the Supreme Court in signing the petitioner’s order to show cause.

Further, the petitioners met their burden of providing a plausible argument supporting a finding of no substantial prejudice. The happening of the accident and relevant facts were documented in a police report, and any prejudice was the result of delays resulting from the COVID-19 pandemic, not the petitioner’s conduct. Matter of Ortiz v New York City Tr. Auth., 2024 NY Slip Op 04464, Second Dept 9-18-24

Practice Point: The COVID-19 tolls and the judge’s delay in signing the order to show cause provided a reasonable excuse for failure to timely file a notice of claim in this bus accident case.

Practice Point: The police report provided the city with timely notice of the relevant facts. Therefore the city was not prejudiced by the late notice.

 

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