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IT WAS REVERSIBLE ERROR TO EMPANEL AN ANONYMOUS JURY; ALTHOUGH THE ERROR WAS NOT PRESERVED, NEW TRIAL GRANTED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s assault-related convictions and ordering a new trial, determined it was error to empanel an anonymous jury:

… [C]onsistent with our recent holding in People v Heidrich (226 AD3d 1096 [3d Dept 2024]), we find merit to defendant’s contention that County Court’s empaneling of an anonymous jury in his case was in error. We again note that the practice of empaneling an anonymous jury contains no statutory justification, as CPL 270.15 (1-a) merely permits the withholding of residential or business addresses of prospective jurors upon a showing of good cause … . While the Court of Appeals has not explicitly sanctioned the practice, it has suggested that, at the very least, “doing so is error where no ‘factual predicate for the extraordinary procedure’ has been shown” … . To that end, the People concede, and we agree, that the record contains no factual support for utilizing an anonymous jury in this case. Instead, the People focus their arguments on defendant’s failure to preserve the issue by consenting to the practice, alongside the contention that the error was, in any event, harmless. On the latter point, we need only note that we recently rejected the applicability of a harmless error analysis to this manner of error … . As to preservation, although defendant concedes his failure to object during pretrial proceedings, he asks that we take corrective action in the interest of justice (see CPL 470.15 [6] [a] …) Considering the totality of circumstances, including the potential effect on the fairness of trial that flows from the decision to utilize an anonymous jury without any justification … , we find such action is appropriate. We therefore exercise our interest of justice jurisdiction and grant defendant a new trial. People v Tenace, 2024 NY Slip Op 03784, Third Dept 7-11-24

Practice Point: Absent factual support for the procedure in the record, it is reversible error to empanel an anonymous jury.​

 

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MOTHER BROUGHT A PETITION TO MODIFY CUSTODY AND ALLEGED SHE DID NOT CONSENT TO THE STIPULATION UNDERLYING THE EXISTING CUSTODY ORDER; BECAUSE THE STIPULATION WAS NOT IN THE RECORD AND ITS TERMS WERE NOT IN THE CUSTODY ORDER, A HEARING WAS REQUIRED (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing was required after mother alleged in her petition to modify custody she did not consent to the stipulation underlying the custody order. The stipulation was not part of the record and the custody order did not recount the terms of the agreement:

Pursuant to CPLR 2104, an agreement between parties is binding against them where, as here, it was reduced to the form of an order and entered. Since “settlement agreements must abide by the principles of contract law, ‘for an enforceable agreement to exist, all material terms must be set forth and there must be a manifestation of mutual assent'” … . CPLR 2104 does not require the parties or the court to place on the record an agreement between the parties that is reduced to an order. However, failing to do so makes the agreement open to collateral litigation … . Here, in light of the mother’s averment that she did not consent to the terms of the custody order, the fact that the terms of the settlement were not placed on the record, and the fact that there was no writing subscribed by the parties, there is an unresolved issue as to whether there was a manifestation of mutual assent to the terms set forth in the custody order. Matter of Izzo v Salzarulo, 2024 NY Slip Op 03751, Second Dept 7-11-24

Practice Point: If a custody order is based upon a stipulation which was not reduced to writing and the terms of the stipulation are not in the order, the order is subject to collateral litigation, here based on mother’s allegation she did not agree to the terms.

 

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FATHER’S FAILURE TO APPEAR DID NOT JUSTIFY FAMILY COURT’S AWARD OF CUSTODY TO MOTHER WITHOUT HOLDING A HEARING (SECOND DEPT). ​

The Second Department, reversing (modifying) Family Court, determined father’s default did not justify failing to hold a hearing before rendering a custody determination:

“[C]ustody determinations should generally be made only after a full and plenary hearing and inquiry” … . While “the ‘general’ right to a hearing in custody cases is not an absolute one[,] . . . [a] decision regarding child custody should be based on admissible evidence” and not “mere ‘information'” or hearsay statements … . Moreover, where the circumstances “fit within the narrow exception to the general right to a hearing[,] . . . a court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … .

Here, the Family Court erred in rendering a custody determination without conducting a hearing or without the submission of any admissible evidence, seemingly relying upon the hearsay statements of the attorneys … . Furthermore, the court failed to make any specific findings of fact regarding the best interests of the child, and failed to clearly articulate which factors were material to its determination … . Under the circumstances, the court should have granted that branch of the father’s motion which was to vacate the order … granting the mother’s petition for sole legal and physical custody of the child … . Matter of Akaberi v Cruciani, 2024 NY Slip Op 03745, Second Dept 7-10-24

Practice Point: Custody determinations should rarely be made without a hearing, even when a parent fails to appear.​

Similar issue and result in Matter of Meehan v Kittle, 2024 NY Slip Op 03754, Second Dept 7-10-24.

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THE COURT’S PRIOR ORDER STATED FATHER’S COMPLIANCE FOR SIX MONTHS WOULD CONSTITUTE A CHANGE IN CIRCUMSTANCES AND FATHER DEMONSTRATED SUCH COMPLIANCE; IN ADDITION MOTHER’S RELOCATION TO ARIZONA WITHOUT PERMISSION CONSTITUTED A CHANGE IN CIRCUMSTANCES; IN-PERSON VISITATION ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined father demonstrated a change in circumstances warranting in-person visitation with the children. The prior order of the court stated that father’s compliance for six months would constitute a change in circumstances and father demonstrated such compliance. In addition, mother’s relocation to Arizona without permission also constituted an actionable change in circumstances:

The prior order provided “that sufficient compliance with [the] order for a period of six (6) months will constitute a change of circumstances for [f]ather to re[-]petition for additional visitation time and overnights.” The father testified that he had been exercising his visitation consistently until the mother moved to Arizona with the children, an assertion that went unchallenged during the hearing. We conclude that the father established a change in circumstances based on his compliance with the terms of the prior order. We also conclude that the mother’s relocation without permission constituted a change in circumstances because it resulted in a substantial interference with the father’s visitation rights … .

Based on the record before us, we further conclude that modification of the father’s visitation schedule to include in-person visitation would serve the children’s best interests … . Matter of Hudson v Carter, 2024 NY Slip Op 03615, Fourth Dept 7-3-24

Practice Point: If a court order indicates compliance for six months will constitute a change in circumstances warranting modification of custody, that condition should be honored by the court.

 

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HERE THE PLEA ALLOCUTION DID NOT INDICATE TWO SEPARATE AND DISTINCT ACTS WERE ENCOMPASSED BY COUNTS 2 AND 3; THEREFORE CONSECUTIVE SENTENCES FOR THOSE COUNTS SHOULD NOT HAVE BEEN IMPOSED (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s consecutive sentences, determined there was no evidence the counts to which defendant pled guilty involved two separate and distinct acts:

Sentences imposed for two or more offenses may not run consecutively where, inter alia, “a single act constitutes two offenses” … . Thus, in order for a consecutive sentence to be legally imposed, the People have the burden of demonstrating by “identifiable facts . . . that the defendant’s acts underlying the crimes are separate and distinct” … . Where, as here, the defendant is “convicted upon a plea to a lesser offense than that charged in the indictment, the People may rely only on those facts and circumstances admitted during the plea allocution” in order to meet that burden … .

Here, no facts were adduced at defendant’s plea allocution that would establish two separate and distinct acts causing injury to the victims named in counts 2 and 3, and thus there was no basis for imposing consecutive sentences for those counts … . People v Wright, 2024 NY Slip Op 03613, Fourth Dept 7-3-24

Practice Point: To impose consecutive sentences based upon a guilty plea, the plea allocution must demonstrate the counts encompass separate and distinct acts.​

 

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CIVIL CONTEMPT AIMS TO COMPENSATE THE OTHER PARTY FOR ANY LOSS ASSOCIATED WITH THE CONTEMPT (FAILURE TO COMPLY WITH A COURT ORDER); CRIMINAL CONTEMPT AIMS TO PUNISH; THEREFORE A $250 A DAY FINE, ALTHOUGH APPROPRIATE FOR CRIMINAL CONTEMPT, WAS NOT APPROPRIATE FOR THE CIVL CONTEMPT AT ISSUE HERE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined fining defendants $250 a day for civil contempt was not appropriate. Civil contempt, unlike criminal contempt, is designed to compensate the other party for any loss, not to punish. The matter was remitted for a determination of any losses to plaintiffs associated with defendants’ contempt. Defendants had ignored a court order requiring that the contested reservation fee (over $700,000) be placed in escrow to prevent defendants from dissipating it:

“Unlike criminal contempt sanctions which are intended to punish, civil contempt fines are intended to compensate victims for their actual losses” … . Plaintiff did not establish an actual loss or injury as a result of the contempt … , and therefore Judiciary Law § 773 authorized the court to impose “a fine . . . not exceeding the amount of the complainant’s costs and expenses, and two hundred and fifty dollars in addition thereto.” Under these circumstances, the fine of $250 per day until the contempt was purged is not authorized by the statute and improperly sought to punish defendants for their continuing contempt, rather than to compensate plaintiff for an amount of damages suffered … . Rpower, LLC, 2024 NY Slip Op 03598, Fourth Dept 7-3-24

Practice Point: Civil contempt aims to address the contempt of the opposing party by compensating for the loss caused by the contempt. Criminal contempt, on the other hand, is designed to punish a party for failing to obey a court order. A fine is therefore appropriate for criminal contempt, but not for civil contempt.

 

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THE PROSECUTOR WHO ARGUED DEFENDANT’S APPEAL WAS A CLERK FOR THE TRIAL JUDGE; PRIOR DECISION AFFIRMING THE CONVICTION VACATED AND CASE REMITTED FOR THE APPOINTMENT OF A SPECIAL PROSECUTOR (THIRD DEPT) ​

The Third Department, vacating its prior affirmance of defendant’s conviction, determined a special prosecutor should be appointed for the appeal because the appeal was handled by a prosecutor who had been the trial judge’s law clerk:

… [T]he Chief Assistant District Attorney (hereinafter ADA) who argued the appeal on behalf of the People was the confidential law clerk to the trial judge who presided over this matter and served in this capacity at the time of the underlying trial. … [D]efendant moved to vacate our prior determination and sought the appointment of a special prosecutor, arguing that the ADA had a conflict of interest under Rule 1.12 of the Rules of Professional Conduct (22 NYCRR 1200.0) disqualifying her from representing the People on appeal … . The ADA maintained that she did not have a conflict of interest because she was not “personally and substantially” involved in this matter as the trial judge’s law clerk, revealing that her involvement consisted of drafting County Court’s decision and order on defendant’s omnibus motion as well as the decision and order on the prosecutor’s motion for consolidation of the separate indictments filed against defendant and the codefendant … . We have determined that the ADA’s involvement in this matter as the trial judge’s law clerk was personal and substantial … . Moreover, defendant did not provide written informed consent waiving the conflict and the required screening procedures were clearly not undertaken “to prevent the flow of information about the matter between the personally disqualified lawyer and the others in the [District Attorney’s office]” … . … [T]he decision on appeal is being withheld and the matter remitted to County Court for the expeditious appointment of a special prosecutor … . People v Butts, 2024 NY Slip Op 03567, Third Dept 7-3-24

Practice Point: If the prosecutor handling the appeal was a clerk for the trial judge at the time of defendant’s trial, there is a conflict requiring the appointment of a special prosecutor for the appeal. Here the decision affirming the conviction was vacated and the matter was remitted for the appointment of a special prosecutor.

 

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THE DEFENSE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING IN THIS CEILING-COLLAPSE CASE; THE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants landlord and property manager were entitled to have the liability verdict set aside in the interest of justice because the judge should not have precluded testimony by defendants’ expert. Plaintiff-tenants were injured when their apartment ceiling collapsed. The defendant expert would have testified there would have been no visible signs that the ceiling was about to collapse. The court noted that plaintiffs’ request for a Frye hearing was properly denied because the expert would have testified based upon his personal training and experience:

“[E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” … . The expert must possess “the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . “The expert’s opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible” … .

Here, the defendants’ CPLR 3101(d) disclosure indicated that Yarmus [the defense expert], a professional engineer with experience in construction management and building and safety code compliance, would testify, inter alia, as to the materials and manner of construction of the ceiling at issue, as well as the manner in which ceilings so constructed may detach and collapse, allegedly, without a defect that is detectable so as to give notice of a dangerous condition. Contrary to the plaintiffs’ contention, Yarmus’s proposed testimony was neither so conclusory or speculative, nor without basis in the record, as to render it inadmissible … .

… “[T]he long-recognized rule of Frye . . . is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has ‘gained general acceptance’ in its specified field … . An expert opinion based on personal training and experience is not subject to a Frye analysis … . Ghazala v Shore Haven Apt. Del, LLC, 2024 NY Slip Op 03681, Second Dept 7-3-24

Practice Point; If a judge makes a mistake by precluding admissible testimony, here testimony by the defense expert, the judge has the power to set aside the verdict in the interest of justice. The Appellate Division reversed the denial of the motion to set aside the verdict.

 

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HERE FAMILY COURT ABUSED ITS DISCRETION BY DENYING FATHER’S “CHANGE IN CIRCUMSTANCES” PETITION WITHOUT A HEARING AND REQUIRING FATHER TO PAY MOTHER’S COUNSEL’S FEES EXCEEDING $12,000 BASED UPON A FINDING THAT FATHER HAD CONSUMED ALCOHOL IN VIOLATION OF A COURT DIRECTIVE; FAMILY COURT SHOULD HAVE FOCUSED ON THE BEST INTERESTS OF THE CHILD, NOT “THE NEED TO REGAIN MOTHER’S TRUST” (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have focused on evidence father may have consumed alcohol in violation of the court’s directive and should have focused on the best interests of the child. Based solely on finding father had consumed alcohol and in the absence of a violation petition, father’s petition for a modification of custody based upon a change in circumstances was denied without a hearing and father was required to pay mother’s counsel’s fees exceeding $12,000. The counsel’s-fee ruling was reversed and the matter was remitted for a “change in circumstances” hearing:

As we must remit the matter to Family Court, we caution the court away from directing that the father completely abstain from the consumption of alcohol or dictating the specific type of treatment method the father must utilize beyond what is necessary to protect the child during his parenting time … . However, that is not to say that if the father’s treatment plan requires abstinence from alcohol that he is not required to comply with such plan. Similarly, we must stress that “the first and paramount concern of the court” must be the best interests of the child … , and that the court should not rely upon the father’s apparent need to “regain the trust of the mother” as it had so heavily throughout the orders on appeal.

We also agree with the father’s contention that Family Court abused its discretion in awarding $12,385.55 in counsel fees to the mother based upon the foregoing conclusion. “When exercising its discretionary powers [to award counsel fees], a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions as well as the complexity of the case and the extent of legal services rendered” … . Here, despite no violation petition being filed against the father, the court found that “the father’s willful violation” of the prior custody order and his “deceptions concerning his alcohol consumption” warranted the imposition of counsel fees. Essentially this resulted in sanctioning the father for filing the modification petition based upon his subsequent consumption of alcohol … . Considering our determination as to the court’s mistaken determination that the father was unable to demonstrate a change in circumstances, we … reverse the court’s award of counsel fees to the mother as an abuse of discretion. Matter of Jacob L. v Heather L., 2024 NY Slip Op 03520, Third Dept 6-27-24

Practice Point: If a Family Court judge focuses on something other than the best interests of the child, here father’s apparent consumption of alcohol in violation of a court directive and mother’s need to trust father, an appellate court may reverse the judge’s rulings as an abuse of discretion, as it did here.

 

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FAMILY COURT HAS THE DECISION-MAKING AUTHORITY TO DETERMINE THE APPROPRIATENESS OF A CHILD’S PLACEMENT IN A QUALIFIED RESIDENTIAL TREATMENT PROGRAM (QRTP) AT EVERY PERMANENCY HEARING (FIRST DEPT).

The First Department, applying an exception to the mootness doctrine (appellate relief had already been granted), determined Family Court has the decision-making authority to determine the appropriateness of a child’s placement in a Qualified Residential Treatment Program (QRTP) at every permanency hearing:

… [W]e find that Family Court has the decision-making authority as to the appropriateness of the child’s continued placement in a QRTP at every permanency hearing (see Family Ct Act §§ 1088[b], 1089[d][2][viii]). A contrary reading goes against the express purpose of the Family First Act, which is aimed at reducing the use of institutional group placements for children in foster care by limiting the length of time that they can spend there. The Family First Act, codified in New York State through amendments to the relevant provisions in the Family Court Act and Social Services Law, explicitly seeks to “ensure[] more foster children are placed with families by limiting federal reimbursement to only congregate care placements that are demonstrated to be the most appropriate for a child’s needs, subject to ongoing judicial review ” … . Matter of Malachi B. (Tania H.), 2024 NY Slip Op 03534, First Dept 6-27-24

Practice Point: Family Court has the authority to review and decide the appropriateness of a child’s placement in a Qualified Residential Treatment Program (QRTP) at every permanency hearing.

 

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