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FAMILY COURT’S RELIGION-BASED DIRECTIVES IN THIS CUSTODY CASE WERE NOT WITHIN THE “BEST INTERESTS OF A CHILD” CATEGORIES OUTLINED IN THE SEMINAL CASE, ALDOUS V ALDOUS, AND WERE THEREFORE VACATED (THIRD DEPT). ​

The Third Department, reversing (modifying) Family Court, in a full-fledged opinion by Justice Reynolds Fitzgerald, over a partial concurrence and partial dissent, determined Family Court’s directives with respect to religion in this custody case should be vacated:

While a court may consider religion as a factor in determining the best interests of a child in custody disputes, “it alone may not be the determinative factor” (Aldous v Aldous, 99 AD2d 197 …). Additionally, cases that do consider religion as a factor generally fall into three separate categories: (1) when a child has developed actual religious ties to a specific religion and one parent is better able to serve those needs; (2) a religious belief violates a state statute; and (3) when a religious belief poses a threat to the child’s well-being … . This standard, enunciated in 1984, continues to be followed … .

None of the three categories outlined in Aldous are applicable to the case before us. The July 2020 consent order granted the parties joint legal custody with equal parenting time. Notably, no reference is made to religion in the custody order. At the time the petitions were filed, the child was not quite two years old and, as such, not of an age so as to allow him to have developed actual religious ties to a specific religion. Nor does the record reveal that the father’s religious beliefs violated a state statute or threatened the child’s well-being. As a result, Family Court improperly intervened in the parties’ religious dispute … . Thus, the court’s directives to the parties that neither parent shall permit the child to attend religious services or instruction until an agreement between the parties is reached on this issue, to address the issue of religion while participating in court-ordered coparenting counseling, and that a failure to reach an agreement with regard to religion will — after completing the court-ordered number of coparenting sessions — constitute a change in circumstances for purposes of modification, were issued in error and should be vacated. Matter of Joseph XX. v Jah-Rai YY., 2024 NY Slip Op 00950, Third Dept 2-22-24

Practice Point: The religious directives issued by Family Court in this custody case were outside the three “best interests of a child” categories outlined in the controlling case, Aldous v Aldous, i.e., “(1) when a child has developed actual religious ties to a specific religion and one parent is better able to serve those needs; (2) a religious belief violates a state statute; and (3) when a religious belief poses a threat to the child’s well-being.”

 

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THE COUNTERCLAIM FOR LOST PROFITS DID NOT DEMONSTRATE “LOST PROFITS” AS CONSEQUENTIAL DAMAGES WAS CONTEMPLATED BY THE PARTIES AT THE TIME THE CONTRACT FOR THE SALE OF GOODS WAS ENTERED; THE MOTION TO DISMISS THE COUNTERCLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss the defendant’s counterclaim for lost profits should not have been converted to a summary judgment motion and the counterclaim must be dismissed because defendant did not demonstrate consequential damages for lost profits was contemplated by the parties when the contract for the sale of goods was entered. The contract was for the sale of military ordnance (target practice rounds) for the Mexican Navy. In its counterclaim, the defendant alleged the goods were not timely delivered and were not accepted by the Mexican Navy:

Lost profits are a form of consequential damages that a buyer, such as the defendant, may recover if “the seller at the time of contracting had reason to know [of them] and which could not reasonably [have been] prevented by cover or otherwise” (UCC 2-715[2][a] …). “To determine whether consequential damages were reasonably contemplated by the parties, ‘the nature, purpose and particular circumstances of the contract known by the parties should be considered, as well as what liability the defendant fairly may be supposed to have assumed consciously, or to have warranted the plaintiff reasonably to suppose that it assumed, when the contract was made'” … . In order to recover consequential damages, a pleading party is required to allege that the damages were foreseeable and within the contemplation of the parties at the time the contract was made … . “[W]here the damages reflect a loss of profits on collateral business arrangements, they are only recoverable when (1) it is demonstrated with certainty that the damages have been caused by the breach, (2) the extent of the loss is capable of proof with reasonable certainty, and (3) it is established that the damages were fairly within the contemplation of the parties” … .

Here, the defendant’s allegations, even as supplemented by an affidavit from its president, failed to sufficiently allege that consequential damages as lost future profits resulting from the cancellation of the defendant’s contract with the Mexican Navy due to the plaintiff’s breach of contract were within the plaintiff’s contemplation at the time of entering into the contract for the sale of goods (see UCC 2-715[2][a] …). Island Ordnance Sys., LLC v Amerimex, Inc., 2024 NY Slip Op 00897, Second Dept 2-21-24

Practice Point: With respect to a contract for the sale of goods controlled by the UCC, a claim for lost profits must specifically allege “lost profits” as an element of consequential damages was contemplated by the parties at the time the contract was entered, not the case here.

 

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THE JURY NOTE REQUESTED THE “DEFINITIONS” OF THE CHARGED OFFENSES; DEFENSE COUNSEL ASKED THE JUDGE TO ALSO REREAD THE JUSTIFICATION INSTRUCTION IN THIS MURDER CASE; THE JUDGE REFUSED; BECAUSE THE JURY’S NOTE WAS SPECIFIC AND DID NOT REQUEST THE JUSTIFICATION INSTRUCTION, THE JUDGE PROPERLY DENIED DEFENSE COUNSEL’S REQUEST (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, with a concurrence, affirming defendant’s convictions in this murder, attempted murder and assault case, determined the judge did not err by denying defense counsel’s request to reread the justification jury instruction after the jury sent out a note asking for the definitions of the charged offenses. The jury asked for “[a]ll definitions discussed: Murder II, Manslaughter I, Depraved Murder II, etc.,” Because the request was deemed specific the justification instruction was not reread because the jury didn’t request it:

… “[T]he form of the jury’s” note indicated a request that the jury be recharged on the elements of the crimes … . The jury note asked for “all definitions” contained in the charges: the jury did not simply ask for “all definitions” to be read back but instead chose to limit which “definitions” it sought by providing an exemplary list containing the first three of the ten criminal offenses on which the trial court had originally instructed the jury and ending the list with “etc.” The usage of “etc.” in this context corroborates this interpretation of the note because et cetera at the end of a list signals “others especially of the same kind” … . That the jury did not seek further instruction or clarification after the recharge also supports our conclusion that the trial court correctly interpreted the jury note and responded meaningfully and with the complete information sought … . People v Aguilar, 2024 NY Slip Op 00849, CtApp 2-20-24

Practice Point: A judge must respond “meaningfully” to a jury note. Here the note requested definitions of the charged crimes. The judge properly denied defense counsel’s request to reread the justification instruction because the jury’s not was specific and did not mention justification.

 

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THE ATTEMPT TO CORRECT A SENTENCING MISTAKE IN THE DEFENDANT’S ABSENCE VIOLATED DEFENDANT’S CONSTITUTIONAL AND STATUTORY RIGHT TO BE PRESENT (FIRST DEPT). ​

The First Department, vacating defendant’s sentence, determined the attempt to correct a mistake in the term of postrelease supervision in defendant’s absence violated defendant’s constitutional and statutory rights:

As the People concede, defendant’s constitutional and statutory rights to be present at sentencing were violated when the court resentenced defendant in his absence to correct a mistake in the term of postrelease supervision imposed (see CPL 380.40[1] …). Accordingly, the sentence is vacated and the matter is remanded for resentencing with defendant present. On remand, the court shall also address the discrepancy between the five-year term of postrelease supervision imposed on the weapon possession count at the original sentencing and the three-year term of postrelease supervision count reflected in the amended sentence and commitment sheet … . People v McCallum, 2024 NY Slip Op 00816, First Dept 2-15-24

Practice Point: Here the attempt to correct a mistake in the period of postrelease supervision in the defendant’s absence required vacation of the sentence.

 

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AS LONG AS PLAINTIFF TAKES SOME ACTION THAT WOULD LEAD TO ENTRY OF A DEFAULT JUDGMENT WITHIN ONE YEAR AND NINETY DAYS OF THE DEFAULT, THE ACTION SHOULD NOT BE DISMISSED AS ABANDONED (SECOND DEPT).

The Second Department, reversing the sua sponte dismissal of the foreclosure complaint, noted that as long as a plaintiff initiates some action for the entry of judgment within one year and ninety days after a default, the action should not be dismissed as abandoned. Here the plaintiff made a request for judicial intervention within one year and ninety days:

… [P]laintiff demonstrated that, within one year after the defendants’ default, it filed a request for judicial intervention which sought a foreclosure settlement conference within the foreclosure action as mandated by CPLR 3408. “Where, as here, a settlement conference is a necessary prerequisite to obtaining a default judgment (see CPLR 3408[a], [m]), a formal judicial request for such a conference in connection with an ongoing demand for the ultimate relief sought in the complaint constitutes ‘proceedings for entry of judgment’ within the meaning of CPLR 3215(c)” … . Since the plaintiff demonstrated that it initiated proceedings for the entry of a judgment of foreclosure and sale within one year after the defendants’ default, it was not required to proffer a reasonable excuse or demonstrate a potentially meritorious cause of action (see CPLR 3215[c] …). US Bank N.A. v Jerriho-Cadogan, 2024 NY Slip Op 00790, Second Dept 2-14-24

Practice Point: Here in this foreclosure action the bank made a request for judicial intervention within one year and ninety days of the default. The action should not have been dismissed as abandoned.

 

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THE SEARCH WARRANT SEEKING CELL SITE LOCATION INFORMATION (CSLI) FROM THE NEW JERSEY CELL PHONE COMPANY WAS FAXED TO NEW JERSEY FROM NEW YORK; THEREFORE THE WARRANT WAS “EXECUTED” IN NEW YORK AND DID NOT VIOLATE THE NEW YORK CONSTITUTION OR CPL ARTICLE 690 (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice LaSalle, determined the search warrant for cell site location information (CSLI) was executed in New York, where the warrant was faxed from, not in New Jersey, where the T-Mobile records were located. Therefore there was no violation of the New York Constitution or Criminal Procedure Law 690.2-(1). The CSLI was used to place the defendant at the location of the stabbing at the time of the stabbing:

Just as the term “executed” is not defined in CPL article 700, it is also not defined in the New York Constitution or CPL article 690. Nevertheless, in determining where a warrant is “executed” within the meaning of CPL 700.05(4), the Court of Appeals looked to where the actions of the law enforcement officers took place. It follows that in determining where a search warrant is “executed” within the meaning of the New York Constitution and CPL 690.20(1), we similarly must look to where the actions of the law enforcement officers took place. Here, the action of the subject law enforcement officer—the act of faxing the search warrant to T-Mobile—took place in New York … .

The “core” of the Fourth Amendment is to “protect the right of privacy from arbitrary police intrusion” … . A service provider accessing and retrieving its subscribers’ CSLI and call detail information located in the service provider’s own business records does not implicate its subscribers’ right to privacy protected by the Fourth Amendment … . It is only when agents of the government act that the subscribers’ Fourth Amendment rights are implicated. Since the actions of the government’s agents that encroached on the defendant’s Fourth Amendment rights—the faxing of the warrant—took place in New York, we conclude that this is where the search warrant was executed. People v Riche, 2024 NY Slip Op 00785, Second Dept 2-14-24

Practice Point: Here a search warrant seeking cell site location information (CSLI), which was faxed from New York to the cell phone company in New Jersey, was “executed” in New York and therefore did not violate the New York Constitution or Criminal Procedure Law Article 690.

 

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THE STATEMENT GIVEN BY THE DEFENDANT WHEN HE WAS UNDER MEDICATION AT THE HOSPITAL SHOULD HAVE BEEN SUPPRESSED; AT TRIAL THE JURY SHOULD HAVE BEEN INSTRUCTED TO REJECT THE STATEMENT IF THEY FOUND IT WAS INVOLUNTARILY MADE; AND THE DEFENSE BATSON CHALLENGE TO THE EXCLUSION OF FOUR AFRICAN-AMERICAN PROSPECTIVE JURORS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined: (1) the statement given by the defendant when he was under medication at the hospital should have been suppressed; (2) at trial the judge should have instructed the jury to reject the statement if they found the statement was not voluntarily made; and (3) the defense Batson challenge to the prosecutor’s exclusion of four African-American prospective jurors should have been granted:

At the time of the interrogation, the defendant had recently been in a medically induced coma, had come out of surgery only hours before, and his condition “was still sufficiently serious that he was in the intensive care unit” … . The defendant “was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus” when the detective approached him … . At the time of the police questioning, the defendant was drowsy from painkillers administered to him, his right arm was handcuffed to the hospital bed, and his left arm was bandaged and immobilized from the earlier surgery. The defendant was positioned upright so that the detective could question him, and when the defendant expressed that this caused him pain and requested medical assistance, the detective denied the request and coerced the defendant by stating that he would obtain medical assistance after he had questioned the defendant. * * *

Where, as here, the defendant has placed in issue the voluntariness of his statements to law enforcement officials, “the court must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made” … . * * *

… [T]he record demonstrates that the articulated reasons were not applied equally to exclude other prospective jurors … . Under these circumstances, the prosecutor’s explanations as to the four prospective jurors were pretextual, and the defendant is entitled to a new trial on this ground … . People v Parker, 2024 NY Slip Op 00783, Second Dept 2-14-24

Practice Point: The statement given by defendant when he was under medication at the hospital should have been suppressed.

Practice Point: At trial, where defendant has placed the voluntariness of his statement in issue, the jury must be instructed to reject the statement if they find it was not voluntarily made.

Practice Point: Here the prosecutor accepted a juror who was a college student living at home but who was not African-American, and the prosecutor rejected four African-American prospective jurors because they were college students living at home with limited life experience. The Batson challenge should have been granted.

 

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THE CONSOLIDATED TRIAL OF TWO SEPARATE CRIMINAL TRANSACTIONS, COUPLED WITH THE ABSENCE OF LIMITING JURY INSTRUCTIONS, CONSTITUTED REVERSIBLE ERROR (FIRST DEPT). ​

The First Department, in a full-fledged comprehensive opinion by Justice Rodriguez, over a two-justice comprehensive concurring opinion, determined that the consolidated trial of two separate criminal transactions, without appropriate limiting jury instructions, was reversible error:

The first indictment charged defendant with, among other counts, attempted murder. In relation to the first indictment, no gun was recovered, the alleged victim was not injured, and the evidence showed that there was at least some degree of animus between defendant and the alleged victim. The defense theory was thus that the discharged gun was in fact the victim’s. The second indictment, concerning an incident nearly six months later at a different location, charged defendant with possession of a firearm that was recovered on the person of his companion. The principal evidence supporting the second indictment was a set of suggestive jail phone call recordings.

Consolidated trial of indictments like the two at issue here is not necessarily error. However, defendant suffered impermissible prejudice as a result of (1) the nature and quantum of the evidence presented and (2) the specific respective theories of the prosecution and the defense. Supreme Court thus abused its discretion and committed error in trying the indictments together.

Although prejudice may in general be adequately ameliorated by appropriate limiting instructions, the jury received no such instruction here. People v Davis, 2024 NY Slip Op 00746, First Dept 2-13-24

Practice Point: This comprehensive majority opinion and and the comprehensive concurring opinion cannot be fairly summarized here. Consult this opinion for the law associated with consolidation of indictments for trial.

 

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RE-READING THE ORIGINAL JURY INSTRUCTION DID NOT ADDRESS THE CONFUSION EXPRESSED IN THE NOTE FROM THE JURY; IN ADDITION, THE JUDGE FAILED TO MAKE THE INITIAL DETERMINATION WHETHER A WITNESS WAS QUALIFIED TO OFFER EXPERT OPINION EVIDENCE; CONVICTION REVERSED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction, over a dissent, determined the judge’s response to a jury note was inadequate and the judge did not make the required initial determination that a witness was qualified to offer expert-opinion evidence on the child sexual abuse accommodation syndrome (CSAAS). The jury wanted to know whether a guilty verdict required that the three alleged acts of sexual abuse take place within the three-month period described in the indictment. The answer was “es,” but the judge merely re-read the original charge about which the jury was confused. With respect to the CSAAS witness, the judge left it up to the jury to decide whether she was qualified as an expert:

… [T]he jury had already been provided with a complete written copy of the court’s original instructions for its reference during deliberations. Under these circumstances, County Court’s response to the jury’s inquiry was not meaningful, as it did nothing to clarify the very specific point on which the jury was confused. “[I]n our view, this is one of those rare cases where interest of justice review is warranted. Where the court fails to give information requested upon a vital point no appellate court may disregard the error” … . * * *

Although “[t]he court is not required to explicitly declare a witness an expert before permitting [expert] testimony” … , “the trial court is vested with the initial responsibility of evaluating whether an expert possesses the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . Here, County Court abdicated its responsibility to make the initial determination as to whether [the witness] qualified as an expert. People v Goff, 2024 NY Slip Op 00656, Third Dept 2-8-24

Practice Point: A response to a jury note must clarify the confusion expressed in the note. Here, re-reading the original instruction was not sufficient.

Practice Point: Although a judge is not required to explicitly declare a witness an expert, the judge must make the initial determination whether the witness is qualified to offer reliable testimony.

 

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THE DEFENSE CHALLENGE TO A JUROR WHO EXPRESSED SERIOUS DOUBTS ABOUT BEING ABLE SERVE SHOULD HAVE BEEN GRANTED, DESPITE HER ULTIMATE STATEMENT SHE COULD DO WHAT IS NECESSARY TO SERVE; THE NEW CPL ARTICLE 245 DISCOVERY STATUTES IMPOSE NEW BURDENS ON THE PEOPLE ENCOMPASSING ROSARIO AND BRADY MATERIAL AND EXTENDING TO DOCUMENTS WHICH ARE NOT IN THE PEOPLE’S POSSESSION, EVEN WHERE THE DEFENSE CAN ACCESS THOSE DOCUMENTS (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction and ordering a new trial, offered important, substantial discussions of (1) how to handle a juror who expresses doubt about the ability to serve on the jury, and (2) the new, much broader and far-reaching disclosure requirements imposed upon the People by the CPL Article 245. The juror expressed doubt about her ability to serve because of her family obligations, her indecisiveness and her inability to follow the orders and instructions of the court. Ultimately when asked if she thought she could do what is necessary to be a juror, she said “yes.” The Fourth Department held the defense challenge to the juror should not have been denied. On the CPL Article 245 issue, the Fourth Department explained that the statute goes far beyond the old, pre-statute, criteria for turning over Rosario and Brady material, to include collecting and turning over discovery from agencies outside the prosecutor’s office, even if the defendant could gain access to those that discovery him or herself: The Fourth Department held the prosecutor committed numerous violations of CPL Article 245 and left it to the judge in the next trial to impose sanctions:

… [T]he prospective juror never stated, unequivocally or otherwise, that she would follow the court’s instructions and apply the law to the facts. Nor did she state that her child care concerns had been alleviated such that she could devote her undivided attention to the trial.

Just as a “general statement of impartiality that does not explicitly address the specific cause of the preexisting bias is not sufficient” … , a general statement from a prospective juror that they can do what it takes to be a juror is not sufficient to rehabilitate the prospective juror where, as here, the prospective juror had previously offered specific reasons for being unable to serve impartially. * * *

Although transcripts that are not in the People’s possession and control are not subject to Brady and Rosario disclosure requirements … , that fact is of no moment for purposes of CPL 245.20. Even where documents are “beyond the prosecutor’s control under Rosario and constructive possession under CPL 245.20 (2), the presumption of openness, … the duty to maintain the flow of information … , the continuing duty to disclose … , and, perhaps most importantly, the goals of article 245 require that when the prosecutor becomes aware [after making the requisite reasonable inquiries] that an agency outside their control holds information that relates to the subject matter of the case, best practice dictates that the People take steps . . . to obtain those records notwithstanding the fact [that] the information may be available to the defendant by equivalent process” … . People v Heverly, 2024 NY Slip Op 00524, Fourth Dept 2-2-24

Practice Point; A juror who expresses serious doubts about being able to serve, doubts which are not addressed by further questioning, should be excluded, even if the juror ultimately states he or she can do what is necessary to serve.

Practice Point: CPL Article 245 has drastically expanded the burden on the People to timely turn over discovery, including Rosario and Brady material and documents which are not in the People’s possession, even where the defense also has access to those documents. The is an important discussion of the new criminal discovery rules which should be required reading for defense counsel, prosecutors and judges.

 

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