You are here: / Judges
, , ,

IT WAS NOT ERROR TO REMOVE THE DISRUPTIVE DEFENDANT FROM THE COURTROOM WITHOUT WARNING JUST PRIOR THE THE ANNOUNCEMENT OF THE VERDICT AND THE POLLING OF THE JURY; APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE THE “REMOVAL” ISSUE ON DIRECT APPEAL (CT APP).

The Court of appeals, in a full-fledged opinion by Judge Rivera, over an extensive dissenting opinion, reversing the grant of a writ of coram nobis, determined: (1) defendant was properly removed from court without warning before the verdict and the poll of the jurors; and (2) appellate counsel was not ineffective for failing to raise defendant’s removal from the court on direct appeal. Removal was justified by the defendant’s acts of violence, verbal abuse and screaming in the courtroom:

We reject the prosecution’s claim that any error was de minimis based on the timing of defendant’s removal from the courtroom. There is no material stage of the proceeding that is any less consequential to a defendant’s right to be present. However, we agree that the trial court’s actions were appropriate under the unique circumstances of this case and in no way contrary to law.

A defendant has a constitutional right “to be present at all material stages of their criminal trial,” which includes the reading of the verdict and the polling of the jury … . Further, CPL 260.20 provides that a defendant must be present during the trial but may be removed if they are “disorderly and disruptive” such that the “trial cannot be carried on with [the defendant] in the courtroom [] if , after [they] have been warned by the court that [they] will be removed if [they] continue such conduct, [they] continue to engage in such conduct.” A court may dispense with the constitutional and statutory warnings when it is impracticable to give them … . … That was the case here. * * *

The Appellate Division erroneously concluded that the trial court violated defendant’s right to be present, and therefore incorrectly granted defendant’s writ of error coram nobis on the sole ground that appellate counsel was ineffective for failing to raise this meritless claim on direct appeal … . People v Dunton, 2024 NY Slip Op 02130, CtApp 4-23-24

Practice Point: In situations where warning a disruptive defendant is impractical, it is not error to remove the defendant from the courtroom without warning. Here defendant was removed just prior to the announcement of the verdict and the polling of the jurors, a material stage of the trial. Under the unique circumstances of this case defendant’s removal was not error.

 

, , , ,

IN THIS MENTAL HYGIENE LAW ARTICLE 10 PROCEEDING TO DETERMINE WHETHER RESPONDENT SEX OFFENDER SUFFERED FROM A MENTAL ABNORMALITY WARRANTING CIVIL MANAGEMENT, THE JUDGE CONFLATED TWO DIFFERENT LEGAL STANDARDS, ERRONEOUSLY FOUND THAT A MENTAL ABNORMALITY CANNOT BE PROVEN BY A CONSTELLATION OF CONDITIONS, DISEASES AND DISORDERS, AND IMPROPERLY RELIED ON OUTSIDE RESEARCH (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, over an extensive dissenting opinion, reversing Supreme Court and ordering a new trial, determined several errors by the judge in this Mental Hygiene Law article 10 proceeding tainted the judge’s finding that the state had not proven respondent sex offender suffered from a mental abnormality and required civil management:

This article 10 proceeding arose out of respondent Richard V.’s 2002 conviction of rape in the first degree. In October 2001, respondent and an accomplice posed as plumbers to gain entry to the apartment of a female acquaintance. After the woman brought them inside, respondent subdued her with pepper spray, restrained her, repeatedly attacked her, threatened to kill her, and twice violently raped her.* * *

The sole issue at the bench trial was whether respondent suffers from a mental abnormality that “predisposes [him] to the commission of conduct constituting a sex offense” resulting in “having serious difficulty [] controlling such conduct” … . At the second stage of an article 10 proceeding — the dispositional phase — the standard is whether a respondent has “such an inability to control his behavior that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” …

There can be little dispute that Supreme Court conflated the applicable legal standards. * * *

… Supreme Court committed reversible error in finding that the State could not use a “constellation” of conditions, diseases, and disorders to establish that respondent has a mental abnormality. * * *

Supreme Court’s extensive usage of outside research blurred the lines between the roles of judge and counsel, depriving the parties of the opportunity to respond … . Matter of State of New York v Richard V., 2024 NY Slip Op 02158, First Dept 4-23-24

Practice Point: When a judge does outside research to inform the decision, the parties are deprived of the opportunity to respond.

 

,

WHERE ALLEGATIONS IN A PETITION TO MODIFY CUSTODY ARE CONTROVERTED, THE PETITION SHOULD NOT BE RULED UPON WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing should have been held in this modification of parental access proceeding. Family Court granted father’s petition without a hearing, despite the parties’ controverted allegations:

“Although [a] parent seeking a change of custody is not automatically entitled to a hearing, custody determinations should [g]enerally be made only after a full and plenary hearing and inquiry” … . “‘This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child'” … . “Accordingly, [w]hen the allegations of fact in a petition to change custody are controverted, the court must, as a general rule, hold a full hearing” … .

Here, the Family Court erred in granting the father’s modification petition to the extent of awarding him certain parental access without a hearing and without inquiring into the best interests of the children, especially in light of the parties’ controverted allegations … . Matter of Valedon v Naqvi, 2024 NY Slip Op 02059, Second Dept 4-17-24

Practice Point: As a general rule, controverted allegations in a petition to modify custody require a hearing.

 

,

COUNSEL’S CONDUCT WAS NOT FRIVILOUS OR DESIGNED TO DELAY; COUNSEL WAS NOT GIVEN THE OPPORTUNITY TO BE HEARD BEFORE SANCTIONED; THE JUDGE DID NOT INDICATE WHY THE AMOUNT OF THE SANCTION WAS APPROPRIATE, $100 SANCTION REVERSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the arguments made by counsel (appellant) were not “frivolous,” counsel’s conduct was not designed to delay, harass or maliciously injure another, the judge did not give counsel an opportunity to be heard before imposing sanctions, and the judge did not indicate why the amount of the sanction was appropriate:

Appellant properly raised procedural and substantive arguments concerning why the court should not direct petitioner to compel respondent, a 62-year-old woman with end stage renal failure, to undergo painful dialysis three times a week for three hours a day and receive powerful psychotropic medication against her wishes in order to restrain her. …

Although the court warned the parties not to interrupt each other or the court, and admonished appellant a couple of times during the hearing about such conduct, the record does not reflect a pattern of such behavior on her part or demonstrate that it caused delay. Further, the court did not cite any false statements made by appellant sufficient to warrant sanctions.

The court also failed to give appellant a reasonable opportunity to he heard on the sanction before it was actually imposed …, and did not indicate why the amount imposed was appropriate … . Matter of Kings County Hosp. v M.R., 2024 NY Slip Op 02016, First Dept 4-16-24

Practice Point: Conduct by counsel in this case was not frivolous; it was not designed to delay and did not involve false statements; sanctions were not warranted.

Practice Point: Before a judge sanctions an attorney, the attorney should be given the opportunity to be heard.

Practice Point: A judge sanctioning an attorney should indicate why the amount of the sanction is appropriate.

 

, ,

HERE FAMILY COURT HAD THE INHERENT POWER TO DETERMINE WHETHER RESPONDENT WAS THE CHILD’S FATHER; RESPONDENT WAS JUDICIALLY ESTOPPED FROM CONTESTING PATERNITY BASED ON HIS POSITION IN A PRIOR PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court had the power to determine whether father (Gunderson) is responsible for the support of the child and father was judicially estopped from contesting paternity because he was awarded parental access in a prior proceeding:

… [T]he Support Magistrate, sua sponte, dismissed the mother’s petition without prejudice on the ground that the Family Court lacked subject matter jurisdiction to enter an order of child support because the parties were never married and there was no acknowledgment of parentage or order of filiation. * * *

… [B]ecause the Family Court has jurisdiction to determine whether an individual parent is responsible for the support of a child (see Family Ct Act § 413[1][a]), in appropriate cases, it also has the inherent authority to ascertain whether a respondent is a child’s parent … .

Under the doctrine of judicial estoppel, “a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed” … . Here, Granderson successfully obtained an order awarding him parental access with the child based on his assertion that he was a parent to the child. Matter of Joseph v Granderson, 2024 NY Slip Op 01921, Second Dept 4-10-24

Practice Point: Here, based upon Family Court’s authority to determine whether a parent is responsible for the support of the child, Family Court had the inherent authority to determine whether respondent is the child’s father.

Practice Point: Here respondent sought and was awarded parental access in a prior proceeding. He was judicially estopped from contesting paternity in this proceeding.

 

,

THE COURT MAY ORDER A PARENT TO SUBMIT TO COUNSELING OR TREATMENT AS PART OF A CUSTODY OR PARENTAL ACCESS ORDER; BUT THE COURT MAY NOT IMPOSE SUCH CONDITIONS ON SEEKING PARENTAL ACCESS IN THE FUTURE (SECOND DEPT). ​

The Second Department noted that a court may order a parent to submit to counseling or treatment as part of a custody or parental access order, but the court cannot not impose those same conditions upon seeking parental access in the future:

“A court deciding a custody proceeding may ‘direct a party to submit to counseling or treatment as a component of a [parental access] or custody order'” … . Here, the Family Court properly directed the father to submit to hair follicle, drug, and alcohol testing as a component of his parental access … . However, the court should not have made the father’s submission to such testing a condition to seeking future parental access … . Matter of Buskey v Alexis, 2024 NY Slip Op 01917, Second Dept 4-10-24

Practice Point: A court may impose treatment or counseling conditions in a parental access order, but cannot so condition the seeking of future parental access.

 

, ,

BECAUSE FAMILY COURT HAD EXCLUSIVE AND CONTINUING JURISDICTION OVER THIS CUSTODY CASE, MOTHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN SUMMARILY DISMISSED BECAUSE FATHER AND CHILD RESIDE OUT-OF-STATE (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition to modify custody should not have summarily dismissed because father and child were living out-of-state. Because New York has exclusive and continuing jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, the court should have allowed mother to present evidence on any connections to New York:

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified at article 5-A of the Domestic Relations Law, a court of this state which has made an initial custody determination has exclusive, continuing jurisdiction over that determination until it finds, as is relevant here, that it should relinquish that jurisdiction because “neither the child” nor “the child and one parent” have a “significant connection” with New York, and “substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” … .

… [T]he initial custody determination was rendered in New York. … Family Court should not have summarily dismissed the mother’s petitions on the ground that the child was living with the father out of state, without considering whether the court had exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a(1), and affording the mother an opportunity to present evidence as to that issue … . Matter of Brandon v Brady, 2024 NY Slip Op 01916, Second Dept 4-10-24

Practice Point: Where New York has exclusive and continuing jurisdiction over a custody matter pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, it is error to summarily dismiss a custody petition on the ground the child lives out-of-state. It must be determined whether there exist sufficient connections with New York to warrant hearing the case in New York.

 

,

HERE THE JUDGE’S DECISION TO EMPANEL AN ANONYMOUS JURY WAS NOT SUPPORTED BY SUFFICIENT REASONS; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s convictions and ordering a new trial, determined the judge had not set forth sufficient reasons for withholding the identities of the jurors. The jury remained anonymous throughout the trial. Jurors were referred to solely by their juror numbers:

… County Court did not cite any threats to this jury and instead based its refusal to disclose the identities of prospective jurors upon a ground that the Court of Appeals has specifically found to be inadequate, namely, “anecdotal accounts from jurors in unrelated cases” … . The People concede that County Court erred in empaneling an anonymous jury, in fact, but argue that reversal is not required because the issue is unpreserved and the error is, in any event, harmless. We disagree on both counts. First, when County Court announced that it would not disclose the names of the prospective jurors, defense counsel immediately “object[ed] to that” and argued that no factual showing of a need for anonymity had been made in this matter. County Court then “den[ied] [the] application” and “note[d] [the] exception.” Defendant therefore preserved the argument for our review by registering an objection to County Court’s refusal to disclose the identities of the jurors in a manner that permitted the trial court to address the issue (see CPL 470.05 [2] …). Second, for the reasons set forth in People v Flores (153 AD3d at 193-195), we are unpersuaded that harmless error analysis is applicable to such an error. Thus, reversal and remittal for a new trial is required. People v Heidrich, 2024 NY Slip Op 01841, Third Dept 4-4-24

Practice Point: Although an anonymous jury may be appropriate is some circumstances, the failure to support the decision to withhold the identities of the jurors must be justified by sufficient reasons. Here the reasons (anecdotal account from jurors in other cases) were deemed insufficient and a new trial was ordered.

 

, , ,

BRADY MATERIAL TURNED OVER TO DEFENDANT AFTER HE PLED GUILTY MAY HAVE AFFECTED HIS DECISIONS ABOUT WHAT PLEA OFFER TO ACCEPT AND WHETHER TO MOVE TO DISMISS CERTAIN CHARGES; THEREFORE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS MOTION TO VACATE THE CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea. After the plea a new prosecutor turned over Brady material which had not been disclosed prior to the plea. Under the facts of the case, defendant’s awareness of the Brady material may have affected his decision to plead guilty to criminal possession of a weapon, a C felony. Therefore a hearing on the 440 motion should have been held:

… [T]he [Brady] evidence may have had an impact on the other charges that may have had an effect on what defendant was allowed to plead to — specifically, the attempted murder in the second degree and assault in the first degree counts … . … [T]hese charges meant that because defendant was indicted with a class B armed felony offense, his plea of guilty was required to be at least to a class C violent felony offense (see CPL 220.10 [5] [d] [i]). The lowest charge that satisfied this requirement was criminal possession of a weapon in the second degree, meaning that, based on the evidence before defendant at the time of his plea and sentencing, this was the most favorable charge that he could obtain — a point acknowledged at sentencing. Assuming, without deciding, that such evidence constituted Brady materials that were not disclosed, and further recognizing that the gravamen of the People’s main argument suggests that this evidence does impact the other charges against defendant, the record is unclear what impact the disclosure of this evidence may have had on defendant’s decision to accept or reject the plea offer — particularly in the context of CPL 220.10 (5) (d) (i) and a potential motion to dismiss certain charges (see CPL 245.25 [2]; see also CPL 440.10 [1] [b], [h] … ). Therefore, under the unique circumstances of this case … it was an error for County Court to decide the motion without an evidentiary hearing … . People v Harries, 2024 NY Slip Op 01843, Third Dept 4-4-24

Practice Point: Where the Brady material turned over to the defendant after he pled guilty may have affected his decisions about what plea offer to accept and whether to move to dismiss certain charges, defendant’s motion to vacate his conviction should not have been denied without first holding an evidentiary hearing.

 

, , ,

SERVICE OF THE ORDER APPEALED FROM BY EMAIL DOES NOT START THE TIME TO TAKE AN APPEAL; FATHER’S REQUEST FOR TELEPHONIC AND WRITTEN CONTACT WITH HIS DAUGHTER PROPERLY DENIED; FATHER WAS INCARCERATED FOR PREDATORY SEXUAL BEHAVIOR INVOLVING A CHILD ABOUT THE SAME AGE AS HIS DAUGHTER (THIRD DEPT). ​

The Third Department, affirming Family Court’s denial of father’s request for telephonic and written contact with his daughter, in a full-fledged opinion by Justice Egan, determined Family Court did not abuse its discretion. Father is incarcerated after pleading guilty to predatory sexual assault against a child, possessing a sexual performance by a child, promoting a sexual performance by a child and use of a child in a sexual performance. The victim of father’s crimes was about the same age as father’s daughter and was acquainted with father’s daughter. The Third Department noted that the time for perfecting father’s appeal never started to run because the notice of the entry of the order appealed from was sent to father by email, which is not an accepted method of service:

… “[A]s the father was served the order by the court via email, which is not a method provided for in Family Court Act § 1113, and there is no indication that he was served by any of the methods authorized by the statute, we conclude that the time to take an appeal did not begin to run and that it cannot be said that the father’s appeal is untimely” … . * * *

Family Court observed that the father pleaded guilty to sex offenses relating to a victim who was about the same age as the child at the time of the hearing — and who was, we note, acquainted with the child — and the father’s testimony gave no reason to believe that he appreciated how his actions might have impacted the child. Family Court further credited the mother’s testimony that she had given the child all of the father’s letters after screening them for inappropriate content, and that the child had simply decided, without any interference from the mother, not to respond to them. The child was almost 13 years old at the time of the hearing and, as such, her apparent desire not to communicate with the father was entitled to some weight in assessing her best interests … . We are satisfied that, according deference to Family Court’s assessment of witness credibility, the foregoing constitutes a sound and substantial basis in the record for the determination that the presumption favoring visitation with a noncustodial parent had been rebutted and that the best interests of the child would be served by limiting contact with the father to written correspondence to which the child was not required to respond … . Matter of Robert M. v Barbara L., 2024 NY Slip Op 01847, Third Dept 4-4-24

Practice Point: Service of an order by email does not start the 30-day period for taking an appeal of the order.

Practice Point: Family Court did not abuse its discretion by denying the incarcerated father’s request for telephonic and written contact with his daughter. Father had pled guilty to predatory sexual behavior involving a victim about the same age as his daughter and with whom his daughter was acquainted.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy