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​ ALTHOUGH DEFENDANT ENTERED A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, THE JUDGE SHOULD NOT HAVE COMMITED DEFENDANT TO SIX MONTHS IN A SECURE FACILITY PURSUANT TO CPL 330.20(6) WITHOUT HOLDING A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant, who entered a plea of not responsible by reason of mental disease or defect, should not have been committed to a secure facility pursuant to CPL 330.20(6) based on a finding defendant suffers from a dangerous mental condition or is mentally ill without first holding a hearing:

The Supreme Court committed reversible error by issuing a commitment order without conducting an initial hearing pursuant to CPL 330.20(6) … . The court’s obligation to provide the initial hearing pursuant to CPL 330.20(6) is mandatory … . At the initial hearing “the People must prove by a preponderance of the evidence that the defendant either suffers from a dangerous mental disorder or is mentally ill” … . Here, the court improperly made a finding that the defendant suffers from a dangerous mental disorder and committed him to a secure facility for six months without first conducting a mandatory hearing pursuant to CPL 330.20(6) and, thus, deprived the defendant of an opportunity to cross-examine the psychiatric examiners and to present his own testimony … . People v Anthony N., 2024 NY Slip Op 00328, Second Dept 1-24-24

Practice Point: Before a defendant can be committed to a secure facility for six months based upon a finding defendant suffers from a dangerous mental disorder or is mentally ill, the court must conduct a hearing.

 

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THERE IS NO INDICATION MOTHER WAS INFORMED OF HER COUNSEL’S WITHDRAWAL BEFORE THE PERMANENCY HEARING WAS HELD IN MOTHER’S AND COUNSEL’S ABSENCE; NEGLECT FINDING REVERSED; TWO DISSENTERS ARGUED NO APPEAL LIES FROM A DEFAULT AND MOTHER’S ONLY REMEDY IS A MOTION TO VACATE (THIRD DEPT).

The Third Department, reversing Family Court in this neglect proceeding, determined it was not demonstrated mother was informed of her counsel’s intent to withdraw from representing her before the judge conducted the permanency hearing in counsel’s and mother’s absence and found against her. The two-justice dissent argued no appeal lies from a default and mother’s recourse was to move to vacate the default pursuant of CPLR 5015(a):

It is well established that the mother, as a respondent in a proceeding pursuant to article 10 of the Family Ct Act, had both a constitutional and a statutory right to the assistance of counsel … . Once counsel has been assigned, an attorney of record may withdraw from representation only upon reasonable notice to his or her client … . Such requirement remains true even where a party fails to appear at proceedings or there are allegations of a breakdown in communication between the client and the attorney … .

Here, there is no indication in the record that the mother’s assigned counsel had informed her that she was seeking to withdraw as counsel … . Nor does the record reveal that Family Court made any inquiry into such notice or whether there was good and sufficient cause for such withdrawal … . Matter of Richard TT. (Kara VV.), 2024 NY Slip Op 00215, Third Dept 1-18-24

Practice Point: There is no evidence mother in this neglect proceeding was informed of her counsel’s withdrawal before the court made the neglect finding in her and her counsel’s absence. Matter reversed and remitted.

Practice Point: Two dissenters argued no appeal lies from a default and mother’s only remedy is a motion to vacate the default.

 

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ALTHOUGH FATHER FILED A PETITION FOR CUSTODY AFTER GRANDMOTHER WAS AWARDED CUSTODY, FATHER’S APPEAL WAS NOT MOOT; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY TO ENSURE FATHER’S WAIVER OF COUNSEL WAS KNOWING, VOLUNTARY AND INTELLIGENT (SECOND DEPT). ​

The Second Department, reversing Family Court, determined: (1) the fact that father filed a petition for custody after custody had been awarded to grandmother did not render father’s appeal of the custody-award to grandmother moot; (2) because the judge failed to make a searching inquiry, father did not effectively waive his right to counsel:

“Once a court makes a finding that extraordinary circumstances exist” to conclude that a parent relinquished his or her otherwise superior right to custody as compared to a nonparent, “that issue cannot be revisited in a subsequent proceeding seeking to modify custody and, thus, such a finding may have enduring consequences for the parties” … . In the order appealed from, the Family Court determined that the requisite extraordinary circumstances existed. This appeal is therefore not academic, among other reasons, because the court’s determination in the order appealed from imposes enduring consequences upon the father that will “impact the scope of the pending proceedings” … . …

Family Court failed to conduct a searching inquiry to ensure that the father’s waiver of his right to counsel was made knowingly, voluntarily, and intelligently … . The hearing record demonstrates that the father did not wish to proceed pro se, but felt that he had no other option but to do so … . To the extent the attorney for the child contends that the court was not required to conduct a searching inquiry because the father did not demonstrate that he was entitled to assigned counsel, this contention is without merit. A court’s obligation to ensure the validity of a party’s waiver of his or her right to counsel extends beyond indigent parties … . In any event, the father indicated that he lacked the funds necessary to afford an attorney, and the court failed to inquire into the father’s financial capability to retain counsel … . The court had an independent obligation to conduct such an inquiry and could not rely solely upon information received from the Legal Aid Society of Orange County regarding whether the father qualified for its services … . Matter of Turner v Estate of Laura Katherine Jane Turner, 2024 NY Slip Op 00193, Second Dept 1-17-24

Practice Point: Here father’s appeal of the award of custody to grandmother was not moot, even though father first filed for custody after the award of custody to grandmother.

Practice Point: A sufficient inquiry into whether a party’s waiver of the right to counsel is knowing, voluntary and intelligent must go beyond whether the party is financially entitled to assigned counsel.

 

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THE JUDGE PRESIDING OVER THIS TRAFFIC ACCIDENT CASE SHOULD HAVE GRANTED PLAINTIFFS’ RECUSAL MOTION; DEFENSE COUNSEL WAS ACTIVE IN THE JUDGE’S ELECTION CAMPAIGN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the judge in a traffic accident case should have granted plaintiffs’ recusal motion. Plaintiffs had learned defense counsel was active in the judge’s election campaign and had failed to disclose that information to the parties:

…Justice Muller did not disclose to the parties that defense counsel and his law firm were providing assistance to his judicial campaign. Plaintiffs independently learned of the fundraiser, prompting them to raise the issue and seek the judge’s recusal. The record establishes that the law firm hosted a fundraising event for Justice Muller, that the names of defense counsel and five other attorneys from his firm appeared as supporters on Justice Muller’s campaign website and that defense counsel wrote a favorable opinion letter endorsing Justice Muller’s candidacy which appeared in several news publications throughout the Fourth Judicial District. Furthermore, the JCEC’s [Judicial Campaign Ethics Center’s] … letter clearly states that Justice Muller was “disqualified, subject to remittal, from presiding over matters involving defense counsel and his law firm, including partners and associates, during the course of [his] judicial campaign” … . Although we have no way of knowing Justice Muller’s reasons or intentions, it is undisputed that he did not disclose the JCEC letter to the parties until a month after receiving it, when his campaign results became official, and he was elected to a new term of office. As judges need to avoid even the appearance of impropriety, Justice Muller should have disclosed the JCEC letter upon receipt and recused from the matter as soon as possible (see Rules Governing Jud Conduct [22 NYCRR] §100.3 [E] [1]; Advisory Comm on Jud Ethics Op 03-64 [2003]). Therefore, Justice Muller abused his discretion in denying plaintiffs’ motion for recusal. Minckler v D’Ella, Inc., 2024 NY Slip Op 00017, Third Dept 1-4-24

Practice Point: Here the judge’s failure to disclose to the parties defense counsel’s involvement in the judge’s election campaign required recusal.

 

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DEFENDANT’S MOTION PAPERS AND EXHIBITS RAISED A QUESTION OF FACT ABOUT WHETHER HE WOULD HAVE PLED GUILTY IF HE WERE AWARE HE COULD BE DEPORTED BASED ON THE PLEA; THEREFORE THE JUDGE SHOULD NOT HAVE DENIED THE MOTION WITHOUT HOLDING A HEARING (SECOND DEPT).

The Second Department, remitting the matter, determined the judge should not have denied defendant’s motion to vacate his plea without holding a hearing. Defendant alleged he would not have pled guilty if he had been informed of the deportation consequences:

According to the defendant’s motion and exhibits, he allegedly immigrated to the United States at approximately 17 years of age, resided here for approximately 26 years, was employed in the United States, and had two children here. Under the circumstances of this case, the defendant’s allegations in his motion that he would not have pleaded guilty and would instead have gone to trial had the court warned him of the possibility of deportation, were sufficient to raise an issue of fact in that regard … . Therefore, the County Court erred in deciding the defendant’s motion to vacate his plea without a hearing. People v Hernandez, 2023 NY Slip Op 06752, Second Dept 12-27-23

Practice Point: If a defendant, in a motion to vacate his plea, raises a question of fact about whether he would have pled guilty if he had know he could be deported, the judge should not deny the motion without holding a hearing.

 

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THE JUDGE HAD A COURT OFFICER COMMUNICATE WITH THE JURY ABOUT A SUBSTANTIVE MATTER OUTSIDE OF THE DEFENDANT’S PRESENCE; DEFENSE COUNSEL DID NOT OBJECT; CONVICTION REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction, determined the judge should not have communicated with the jury outside of the defendant’s presence and should not have delegated the court’s duty to a court officer. When the jury sent out the verdict sheet, the judge noticed a mistake. The jury had indicated “guilty on all counts,” including count 2, but the jury should have been instructed to skip count 2 if it found defendant guilty of count 1. The judge sent a court officer to the jury to explain the mistake. The jury came back with a verdict of guilty on count 2. Defense counsel did not object to the procedure:

“[A] defendant has the right to be present during all critical stages of a trial and . . . this includes the right to be present when the jury is given instructions or information by the court” … . “Equally true is that the court may not delegate to a nonjudicial staff member its authority to instruct the jury on matters affecting their deliberations” … . While “[a] Trial Judge may properly authorize a court officer to speak to a deliberating jury when the subject of the communication is administerial[,] . . . a Trial Judge who authorizes a court officer to communicate with a jury on matters which are not administerial not only errs, but commits an error so grave as to warrant reversal even though the defendant’s attorney might have consented to the occurrence of the error” … .

… Supreme Court improperly delegated a judicial duty to a nonjudicial staff member at a critical stage of the proceedings. … [T]he instruction was not a mere ministerial matter. Under the circumstances, where the jury was deliberating and had expressed confusion about the relationship between counts one and two, the court’s rejection of the verdict sheet and the instruction to correct it was an instruction regarding the jury’s deliberation … . Thus, the defendant was absent during a critical stage of the trial, and the court improperly delegated a judicial duty to a nonjudicial staff member … . People v Fulton, 2023 NY Slip Op 06750, Second Dept 12-27-23

Practice Point: It is reversible error for a judge to communicate with the jury outside the defendant’s presence.

Practice Point: It is reversible error for a judge to allow a court officer to communicate with the jury about a substantive matter.

 

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DEFENDANT, WHO WAS 19 WHEN ARRSTED FOR HAVING CHILD PORNOGRAPHY ON HIS PHONE, AND WHO HAD NEVER COMMITTED ANY OTHER OFFENSES, WAS ENTITLED TO A DOWNWARD DEPARTURE TO SORA RISK-LEVEL ONE; COUNTY COURT APPLIED THE WRONG EVIDENTIARY STANDARD (FOURTH DEPT).

The Fourth Department, reversing County Court, determined (1) County Court erred when it applied the “clear and convincing” evidentiary standard, as opposed to the “preponderance of the evidence” standard to the SORA risk assessment proceeding, and (2) defendant in this child pornography case was entitled to a downward departure to level one. Defendant, who was 19, had child pornography on his phone but had never committed a sexual offense or any other crime. He was sentenced to probation. He was assessed 90 points (level two) by the People (including 30 points for three or more victims [risk factor 3] and 20 points because the victims were strangers [risk factor 7]).

As the Court of Appeals has stated, “in deciding a child pornography offender’s application for a downward departure, a SORA court should, in the exercise of its discretion, give particularly strong consideration to the possibility that adjudicating the offender in accordance with the guidelines point score and without departing downward might lead to an excessive level of registration” … . “The departure process is the best way to avoid potentially ‘anomalous results’ for some child pornography offenders that ‘the authors of the Guidelines may not have intended or foreseen’ ” … .

Here, defendant established by a preponderance of the evidence that there are mitigating factors “not otherwise adequately taken into account by the guidelines” …  The mitigating factors include the fact that defendant was assessed points under risk factors 3 and 7, without which he would have scored as a level one risk. Further, weighing the mitigating factors against any aggravating factors, we conclude that the totality of the circumstances warrants a downward departure to risk level one to avoid an over-assessment of “defendant’s dangerousness and risk of sexual recidivism” … . People v Stagles, 2023 NY Slip Op 06613, Fourth Dept 12-22-23

Practice Point: The correct evidentiary standard for a SORA risk-level assessment is “preponderance of the evidence.”

Practice Point: For offenders convicted of possession of child pornography, who are assessed SORA risk-level points for “three of more victims” and “strangers as victims” based solely on the images, may be entitled to a downward departure.

 

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THE CONTEMPT AND GAG ORDERS ISSUED IN THIS TRIAL WHERE FORMER PRESIDENT TRUMP IS THE DEFENDANT ARE NOT APPROPRIATELY CHALLENGED BY A DEMAND FOR A WRIT OF PROHIBITION OR AN ARTICLE 78 REVIEW; MOTIONS TO VACATE THE ORDERS SHOULD BE MADE; ANY DENIAL OF THE MOTIONS COULD THEN BE APPEALED (FIRST DEPT).

The First Department determined demand for a writ of prohibition (CPLR 7803(2)) and an article 78 review (CPLR 7801(2)) of Contempt Orders and Gag Orders issued by the judge in this trial (where former President Donald Trump is the defendant) were not the proper procedural vehicles. The proper procedure would be to move the vacate the orders and then appeal the denial of the motion:

In determining whether to exercise the court’s discretion and grant a writ of prohibition, several factors are to be considered, including “the gravity of the harm which would be caused by an excess of power” and “whether the excess of power can be adequately corrected on appeal or by other ordinary proceedings at law or in equity” … . Here, the gravity of potential harm is small, given that the Gag Order is narrow, limited to prohibiting solely statements regarding the court’s staff … . Further, while the Gag Order and Contempt Orders were not issued pursuant to formal motion practice, they are reviewable through the ordinary appellate process (see CPLR 5701[a][3] …). For these reasons, a writ of prohibition is not the proper vehicle for challenging the Gag Order and Contempt Orders.

As to the first cause of action, CPLR 7801(2) clarifies that article 78 review is not permitted in a civil or criminal action where it can be reviewed by other means, “unless it is an order summarily punishing a contempt committed in the presence of the court” (CPLR 7801[2]). The Contempt Orders here were not issued “summarily,” nor was the contempt “committed in the presence of the court.” To the extent there may have been appealable issues with respect to any of the procedures the court implemented in imposing the financial sanctions, the proper method of review would be to move to vacate the Contempt Orders, and then to take an appeal from the denial of those motions. Matter of Trump v Engoron, 2023 NY Slip Op 06461, First Dept 12-14-23

Practice Point: The contempt and gag orders issued in this trial of former president Donald Trump cannot be challenged by a demand for a writ of prohibition or an Article 78 review. The proper procedure is to move to vacate the orders and appeal any denial.

 

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THE PEOPLE DID NOT EXERCISE DUE DILIGENCE IN PROVIDING DISCOVERY; THE CERTIFICATE OF COMPLIANCE WAS INVALID AND DID NOT STOP THE SPEEDY-TRIAL CLOCK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined the People did not exercise due diligence in providing discovery to the defense. Therefore the certificate of compliance (COC) was invalid and did not stop the speedy trial clock. The prosecution was time-barred:

In 2019, the New York State Legislature enacted sweeping reforms that expanded and restructured disclosure obligations in criminal cases, effective at the start of 2020 (see L 2019, ch 59, § 1, pt LLL). This appeal concerns a new requirement set forth in CPL article 245 that the People file a certificate of compliance (COC) with their statutory disclosure obligations (see CPL 245.50 [1], [3]). * * *

Due diligence is a mixed question of fact and law, and thus we consider whether the fact finder’s conclusions are supported by the record … . Viewed under the proper legal standard, there is no record support for the conclusion of the courts below that prior to filing the initial COC, the People exercised due diligence and made reasonable inquiries to identify mandatory discovery items relating to this case.

The belated disclosure here consisted of routinely produced disclosure materials—the creation of at least one of which was mandated by law … . The absence of such significant items of disclosure was readily noticed by the defense, which then brought it to the attention of the People and the court. The prosecution had two opportunities to establish that they had exercised due diligence, but failed to do so. At the appearance on May 26th, in which defense counsel first called attention to the missing items, the prosecutor simply asserted that he had “checked” without any elaboration as to what efforts were made to verify whether there was any outstanding discovery or whether the disclosure requested by the defense—which was in the possession of the People (see CPL 245.20 [2])—actually existed. The prosecutor speculated that such disclosure items did not exist and had not been created, and otherwise stated in a cursory fashion that all discovery had been turned over. When the parties appeared on July 6th following Bay’s CPL 30.30 motion, the People again made no mention of any efforts taken to ascertain the existence of discovery materials before the COC was filed, nor did they explain why some discovery was initially missing or how it came into their possession. People v Bay, 2023 NY Slip Op 06407, CtApp 12-14-23

Practice Point: Here the People did not exercise due diligence in complying with their discovery obligations. Therefore the certificate of compliance (COC) was invalid and did not stop the speedy trial clock. If the People can demonstrate they exercised due diligence in providing discovery, the COC will not be deemed improper.

 

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HERE A WITNESS TO THE SHOOTING IDENTIFIED THE DEFENDANT AS THE SHOOTER FOR THE FIRST TIME AT TRIAL; UNDER THE FACTS, THE DEFENDANT WAS NOT PREJUDICED; THE COURT OFFERED GUIDANCE ON HOW TO HANDLE OR AVOID THE SITUATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a comprehensive dissenting opinion, affirming the Appellate Division, determined defendant was not prejudiced by a witness to the shooting who identified him as the shooter for the first-time at trial. The opinion takes note of the suggestiveness of a first-time identification at trial and offers instructions on how the situation should be handled and/or avoided. Here, however, the the defendant was aware of the witness and did not request any identification procedures, surveillance video captured both the shooter and the victim, the victim knew the shooter, and the victim identified the shooter. The court noted that any error was clearly harmless:

Concerning identifications made at trial, this Court and many others have recognized the inherent suggestiveness of the traditional in-court identification procedure, with a single defendant sitting at a table with defense counsel … . As with an unduly suggestive pretrial identification, it will often be immediately clear to the witness who the accused defendant is, especially if the witness has a rudimentary knowledge of courtroom seating arrangements. The principal danger is that, faced with the pressures of testifying at trial, the witness will identify the defendant as the perpetrator simply because the defendant is sitting in the appropriate spot, and not because the witness recognizes the defendant as the same person that they observed during the crime. Inasmuch as the traditional courtroom seating arrangement may itself suggest to the witness who should be identified, trial courts must be vigilant to ensure that where a witness has not previously identified the defendant in a properly conducted pretrial identification procedure such as a photo array or lineup, the suggestiveness of a first-time, in-court identification procedure does not create an unreasonable danger of a mistaken identification. People v Perdue, 2023 NY Slip Op 06404, CtApp 12-14-23

Practice Point: Here, under the unique facts of the case, defendant was not prejudiced by allowing a witness to identify him as the shooter for the first time at trial. The court offered guidance on how the situation should be handled and/or avoided.

 

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