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WHEN DEFENDANT MADE STATEMENTS AT THE TIME OF THE PLEA WHICH RAISED A POSSIBLE INTOXICATION DEFENSE THE JUDGE SHOULD HAVE INQUIRED FURTHER; THE ISSUE NEEDN’T BE PRESERVED FOR APPEAL (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the defendant’s statement at the time of the plea raised questions the judge should have explored. A narrow exception to the preservation requirement applies here:

The narrow exception to the preservation requirement applies in this “rare case” where defendant made statements that cast doubt upon his guilt and the court failed to satisfy its duty of inquiring further to ensure that defendant’s plea was knowing and voluntary … . Although defendant’s statements at sentencing raised a possible intoxication defense, the court did not make any inquiry regarding the statements or the applicability of the defense. The court’s failure to ensure that defendant understood the defense and was waiving his right to pursue it at trial requires vacatur of the plea … . People v Dozier, 2024 NY Slip Op 02602, First Dept 5-9-24

Practice Point: If a defendant makes statements at the time of a plea which indicates a possible defense, the judge must make inquiries sufficient to ensure the plea is voluntary and intelligent.

Practice Point: When a defendant makes statements at the time of the plea which indicate a possible defense and the judge fails to make sufficient inquiries, the issue is appealable in the absence of preservation.

 

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THE JUDGE SHOULD NOT HAVE REJECTED PLAINTIFF’S EXPERT’S OPINION BECAUSE SHE WAS A REGISTERED NURSE, NOT A DOCTOR; THE REGISTERED NURSE WAS QUALIFIED TO OFFER AN OPINION ON FALL PREVENTION; AN EXPERT’S QUALIFICATIONS SPEAK TO THE WEIGHT OF THE OPINION EVIDENCE, NOT ADMISSIBILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the evidence submitted by plaintiff’s expert, a registered nurse, should not have been rejected because she was not a physician. Plaintiff’s decedent was a nursing-home patient with dementia who fell. The registered nurse was qualified to offer opinion evidence about measures to prevent elderly patients from falling:

Supreme Court disregarded plaintiff’s nursing expert’s opinion because she is not a medical doctor. However, the standard of care at issue clearly falls within the duties and expertise of a registered nurse. At the defendant nursing home, patient assessments were performed by registered nurses and evaluated by a team which included registered nurses. The nursing expert’s curriculum vitae demonstrates that she has a Bachelor of Science in nursing from the University of the State of New York, is licensed as a registered nurse in New York, and has worked in nursing since 1980. In particular, she has over fifteen years of experience conducting plan of care assessments for high-risk nursing home patients. Therefore, plaintiff’s nursing expert demonstrated that she has the requisite experience and expertise to opine as to the proper medical standard for preventing falls in elderly patients with dementia residing in skilled nursing facilities and whether defendant deviated from that standard … .

Furthermore, challenges regarding an expert witness’s qualifications affect the weight to be accorded the expert’s views, not their admissibility … . Rodriguez v Isabella Geriatric Ctr. Inc., 2024 NY Slip Op 02608, First Dept 5-9-24

Practice Point: Here the registered nurse was qualified to offer an opinion on the measures necessary to prevent geriatric patients from falling.

Practice Point: An expert’s qualifications speak to the weight of the opinion evidence, not its admissibility. Here the registered nurses opinion should not have been rejected because she was not a physician.

 

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DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION, GUILTY PLEA VACATED; THE WAIVER OF APPEAL WAS NOT DISCUSSED UNTIL AFTER THE GUILTY PLEA, WAIVER INVALID (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea and finding the waiver of appeal invalid, held that the judge’s failure to inform defendant of the period of postrelease supervision rendered the guilty plea involuntary. In addition, the judge did not discuss the waiver of appeal until after the guilty plea:

… County Court did not specify the period of postrelease supervision to be imposed and did not explain that a term of postrelease supervision would be imposed even if the defendant successfully completed a substance abuse diversion program. … [T]he court’s failure to so advise the defendant prevented his plea from being knowing, voluntary, and intelligent … . …

… County Court did not discuss the appeal waiver until after the defendant had already admitted his guilt … , and the court failed to ascertain whether the defendant “understood the nature of the appellate rights being waived” and the consequences of waiving those rights … . People v Reyes, 2024 NY Slip Op 02547, Second Dept  5-8-24

Practice Point: Failure to inform defendant of the period of postrelease supervision renders the guilty plea involuntary.

Practice Point: Failure to discuss the waiver of appeal until after the defendant pleads guilty renders the waiver invalid.

 

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SUPREME COURT DID NOT CITE ANY “EXTRAORDINARY CIRCUMSTANCES” TO JUSTIFY ITS SUA-SPONTE DISMISSAL OF THE COMPLAINT IN THIS DIVORCE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this divorce action, determined there was no demonstration of “extraordinary circumstances” to justify Supreme Court’s sua sponte dismissal of the complaint:

“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, the Supreme Court did not identify any extraordinary circumstances warranting sua sponte dismissal of the complaint … . The plaintiff moved, inter alia, to consolidate custody and family offense proceedings that were pending in the Family Court, Queens County, and the Family Court, Kings County, with the instant action. There was no motion to dismiss the complaint in its entirety or to change venue before the court … . Ivashchenko v Borukhov, 2024 NY Slip Op 02526, Second Dept 5-8-24

Practice Point: This decision illustrates the appellate-courts’ discomfort with sua sponte dismissals of complaints (dismissal in the absence of a motion requesting it).

 

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FAILURE TO INFORM DEFENDANT A FINE IS PART OF THE SENTENCE RENDERED THE GUILTY PLEA INVOLUNTARY (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined the failure to inform defendant that a fine was part of the sentence rendered the plea involuntary:

“[I]n order for a plea to be knowingly, voluntarily and intelligently entered, a defendant must be advised of the direct consequences of that plea” … . “The direct consequences of a plea—those whose omission from a plea colloquy makes the plea per se invalid—are essentially the core components of a defendant’s sentence: a term of probation or imprisonment, a term of postrelease supervision, a fine” … , and the failure to advise a defendant at the time of the guilty plea of a direct consequence of that plea “requires that [the] plea be vacated” … . Here, the court failed to advise defendant that the sentence imposed on a person convicted of aggravated unlicensed operation of a motor vehicle in the first degree must include a fine in an amount between $500 and $5,000 (see Vehicle and Traffic Law § 511 [3] [b] [i]). People v Carmichael, 2024 NY Slip Op 02427, Fourth Dept 5-3-24

Practice Point: A judge’s failure to inform the defendant that a fine is part of the sentence renders the guilty plea involuntary.

 

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IN THIS PARTITION ACTION, THERE WAS NO PENDING MOTION FOR SUMMARY JUDGMENT AND THERE WAS NO INDICATION THE PARTIES HAD LAID THEIR PROOF BARE SUCH THAT THE COURT COULD CONSIDER GRANTING SUMMARY JUDGMENT; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the judge should not have granted summary judgment in the absence of a motion and a hearing. The underlying issue is whether the subject real property should be partitioned or sold at auction:

… [D]efendant and decedent made an oral motion for … a hearing on whether the property could be partitioned. Rather than decide that motion, the court directed the parties to exchange expert reports and set the matter down for a conference, at which time a hearing would be scheduled if the parties could not come to an agreement regarding partition. However, when the parties appeared for the scheduled conference, the court did not set a date for the hearing, but, instead, held the conference, and subsequently, in effect, granted summary judgment to plaintiffs. Because “there was no motion for summary judgment pending before the court at that time, . . . it was error for the court to grant such relief” … . Although a court “has the power to award summary judgment to a nonmoving party, predicated upon a motion for the relief by another party, it may not sua sponte award summary judgment if no party has moved for summary judgment . . . , unless it appears from a reading of the parties’ papers that they were deliberately charting a course for summary judgment by laying bare their proof” … . Here, contrary to plaintiffs’ contention, it does not appear that the parties were deliberately charting a course for summary judgment. Indeed, the only motion pending before the court was the oral motion of defendant and decedent for … a hearing. Therefore, we reverse … and remit the matter for a hearing on whether the property may be partitioned without undue prejudice and for an accounting. The accounting shall be held “before interlocutory judgment is rendered” (RPAPL 911 …). Smith v Smith, 2024 NY Slip Op 02478, Fourth Dept 5-3-24

Practice Point: Generally a judge cannot grant summary judgment absent a motion.

Practice Point: If the parties lay bare all their proof indicating they have charted a course for summary judgment (not the case here), the court may award summary judgment absent a motion.

 

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THE MAJORITY CONCLUDED SUPREME COURT, SUA SPONTE, PROPERLY DISMISSED THE FORECLOSURE ACTION PURSUANT TO 22 NYCRR 202.27 BECAUSE PLAINTIFF FAILED TO COMPLY WITH THE COURT’S DIRECTIVES; THE DISSENT ARGUED DISMISSAL PURSUANT TO SECTION 202.27 WAS IMPROPER AND PLAINTIFF’S MOTION TO VACATE THE DISMISSAL SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, over a substantive dissent, determined Supreme Court, sua sponte, properly dismissed the foreclosure action as abandoned pursuant to 22 NYCRR 202.27 based upon plaintiff’s failure to comply with the court’s directive. The dissent argued the criteria for a section 202.27 dismissal were not met and the motion to vacate the dismissal should have been granted:

… [W]e reject plaintiff’s contention that the action was improperly dismissed. Although the April 2020 order does not specify which statutory or regulatory basis was being relied upon to dismiss the action, this Court has “consistently held” that 22 NYCRR 202.27 authorizes a trial court to dismiss an action as abandoned where a “party fails to timely comply with a court’s directive to progress the case” … . Supreme Court described in its April 2020 order how plaintiff had made no effort to move this action forward since 2016 and how plaintiff was summoned to a status conference in November 2019, where the court directed plaintiff to move for a judgment of foreclosure no later than December 31, 2019. Plaintiff failed, without explanation, to comply with that directive, and Supreme Court was therefore within its discretion to dismiss the action pursuant to 22 NYCRR 202.2 … . U.S. Bank N.A. v Hartquist, 2024 NY Slip Op 02352, Third Dept 5-2-24

Practice Point: The court has the power to, sua sponte, dismiss an action pursuant to 22 NYCRR 202.27 where plaintiff has failed to comply with court directives.

 

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THERE WAS NO RECORD DEFENSE COUNSEL WAS INFORMED OF THE JURY NOTE AND NO RECORD THE JUDGE RESPONDED TO THE NOTE, A MODE OF PROCEEDINGS ERROR; ALTHOUGH THE NOTE REFERRED ONLY TO ONE COUNT, THE THREE COUNTS WERE FACTUALLY CONNECTED REQUIRING A NEW TRIAL (FIRST DEPT). ​

The First Department, reversing defendant’s conviction and ordering a new trial, determined the absence of a record indicating defense counsel was notified of a note from the jury, or even that the judge responded to the note, was a mode of proceedings error. The People’s argument that the note addressed only one count of the indictment and the convictions on the other counts should survive was rejected. The nature of the jury’s question was relevant to all counts:

The fourth note stated: “We the jury request to hear the judge’s reading of count 1, including definitions and detail. Further, can you please confirm if it is up to our determination to decide if something is considered as “course of conduct” and “act”? As written on the verdict sheet, count 1 states “engaging in a course off conduct,” we want to confirm if this is a typo or not.” * * *

When an O’Rama error occurs, the question of whether the error in the proceedings related to some charges requires reversal on the other charges is determined on a case-by-case basis, with ‘due regard’ for the facts of the case, the nature of the error, and the ‘potential for prejudicial impact on the over-all outcome’ … .

Here, the three counts of the indictment were alleged to arise from a course or repetition of conduct in violation of the order of protection reasonably perceived as threatening to the victim’s safety (count 1), through means both electronic/written (count 2) and telephonic (count 3). Thus, given the underlying factual relationship between the crimes, defendant is entitled to a new trial … . People v Jamison, 2024 NY Slip Op 02286, First Dept 4-30-24

Practice Point: If the record is silent about whether counsel was notified of a jury note and whether the judge even responded to the note, that is a mode of proceedings error.

Practice Point: Although the jury note related to only one of the three counts, the convictions on the other two counts could not survive because all the counts were factually connected.

 

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A JUROR WAS CONVINCED DEFENDANT HAD FOLLOWED HER HOME AND SO INFORMED THE JURY DURING DELIBERATIONS; THE JUROR WAS “GROSSLY UNQUALIFIED” AND DEFENDANT’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (CT APP).

The Court of Appeals, reversing defendant’s conviction and ordering a new trial, in a full-fledged opinion by Judge Wilson, determined a juror should have been dismissed as “grossly unqualified,” and a mistrial should have been granted:

Upon a jury verdict, the trial court convicted Kenneth Fisher of three counts of third-degree criminal possession of a controlled substance (PL 220.16) arising from two controlled buy operations. He was sentenced to nine years in prison. One of the jurors in Mr. Fisher’s case was certain that Mr. Fisher had followed her home after the first day of jury selection, a belief the trial court deemed likely unfounded. Instead of promptly informing the court of her concern, she instead waited three days, until the case was submitted to the jury, and then expressed her safety concern to the other jurors as they deliberated. Those facts established that the juror was “grossly unqualified” pursuant to CPL 270.35, because it was clear she “possesse[d] a state of mind which would prevent the rendering of an impartial verdict” … . Although the trial judge then elicited some assurances that the juror could put aside her concerns, those assurances were insufficient to support a conclusion that the juror should be retained. Therefore, the juror should have been dismissed and a mistrial granted. * * *

Strongly held, prejudicial beliefs about the defendant which are not based on the trial evidence strike at the heart of the right to an impartial jury, and therefore render a juror “grossly unqualified” unless the bias can be cured or set aside. Given the extent of Juror Six’s prejudicial beliefs and her introduction of those beliefs into deliberations, it was error to conclude that the issue was cured merely by “yes” answers to formulaic questions. People v Fisher, 2024 NY Slip Op 02129, CtApp 4-23-24

Practice Point: A juror who believed defendant had followed her home and who so informed the jury during deliberations was “grossly unqualified” requiring a mistrial declaration.

 

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