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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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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.

 

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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.

 

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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.

 

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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.

 

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