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FAILURE TO RULE ON A MOTION FOR A TRIAL ORDER OF DISMISSAL IS NOT A DENIAL OF THE MOTION; THE MATTER MUST BE SENT BACK FOR A RULING (FOURTH DEPT).

The Fourth Department, sending the matter back for a ruling, noted that the failure to rule on motion for a trial order of dismissal is not a denial which can be raised on appeal.  People v Keane, 2023 NY Slip Op 05915, Fourth Dept 11-17-23

 

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DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER WITHOUT A HEARING DEMONSTRATING THE CRITERIA HAVE BEEN MET (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s sentence, determined the judge should have granted defendant’s request for a hearing before sentencing defendant as a persistent violent felony offender. There had been no determination whether the criteria for sentencing as a persistent violent felony offender (at least two sentences for violent felonies within the last 10 years) had been met:

Although defendant admitted at sentencing that he had been convicted of the prior violent felony offenses alleged in the People’s persistent violent felony offender statement, defendant did not concede that he had been sentenced on at least two of those violent felonies within 10 years prior to the commission of the instant offense, and the People’s statement did not set forth the commencement date, termination date, and place of imprisonment for each period of incarceration to be used for tolling of the ten-year limitation as required by CPL 400.15 (2). Moreover, as the People correctly concede, the record does not include a specific finding by the court regarding whether there was sufficient incarceration tolling for defendant’s prior violent felony convictions to count as predicate convictions. People v Scott, 2023 NY Slip Op 05900, Fourth Dept 11-17-23

Practice Point: Here defendant’s request for a hearing to determine whether the criteria for sentencing him as a persistent violent felony offender should have been granted.

 

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FATHER’S PETITION FOR MODIFICATION OF CUSTODY BASED PRIMARILY UPON INCREASED TRAVEL TIME BECAUSE OF MOTHER’S MOVE SHOULD NOT HAVE BEEN DISMISSED; THE MAJORITY NOTED MANY REASONING ERRORS AND ORDERED A NEW HEARING IN FRONT OF A DIFFERENT JUDGE; TWO-JUSTICE DISSENT (THIRD DEPT) ​

The Third Department, reversing Family Court, over a two-justice dissent, determined father’s petition for a modification of the custody arrangement based upon mother’s move and the consequent increase in travel times should not have been dismissed. The matter was sent back for a new fact-finding hearing before a different judge:

Applying the correct standard at this procedural stage — providing the father the benefit of every reasonable inference and resolving all credibility questions in his favor … — the father’s proof sufficiently established that, since the entry of the 2012 order, the mother had moved to a different county, which move significantly increased the time and distance required to effectuate custodial exchanges, and that, in the nine years since said order, the mother routinely refused to agree to holiday parenting time for the father. Consequently, the father demonstrated a change in circumstances sufficient to overcome a motion to dismiss … . Matter of Shayne FF. v Julie GG., 2023 NY Slip Op 05767, Third Dept 11-16-23

Practice Point: Increased travel time because of mother’s move supported father’s petition for a modification of custody. The majority found many reasoning errors and ordered a new hearing before a different judge. A two-justice dissent argued the petition was properly dismissed.

 

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THE MOTIONS BEFORE THE COURT IN THIS TRAFFIC ACCIDENT CASE DID NOT ADDRESS WHETHER THE EMPLOYER OF THE DRIVER WHO REAR-ENDED PLAINTIFF WAS LIABLE TO PLAINTIFF; THE COURT SHOULD NOT HAVE, SUA SPONTE, SEARCHED THE RECORD AND AWARDED PLAINTIFF SUMMARY JUDGMENT AGAINST THE EMPLOYER OF THE DRIVER (FIRST DEPT).

The First Department, reversing Supreme Court in this traffic-accident case, determined Supreme Court should not have, sua sponte, searched the record to award plaintiff summary judgment. The motion before the court was brought by the owner of the car which rear-ended plaintiff, Piard, against the employer of the driver of Piard’s car, Y & H. Piard alleged she did not give Y & H permission to drive the car outside of Y & H’s garage and sought summary judgment on that ground. The court improperly searched the record and awarded plaintiff summary judgment against Y & H:

… [T]he motion court erred in searching the record and granting summary judgment to plaintiff on plaintiff’s claim against Y&H. A motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense … . Here, the only issues raised with respect to defendant Piard’s motion and plaintiff’s cross-motion were defendant Piard’s liability and plaintiff’s comparative fault. The court therefore erred in granting summary judgment to plaintiff based on co-defendant’s Y&H’s liability. Christopher v Piard, 2023 NY Slip Op 05787, First Dept 11-16-23

Practice Point: There are limits on a court’s power to search the record and, sua sponte, award summary judgment. Here the motions before the court did not address whether the employer of the driver of the car which rear-ended plaintiff was liable to plaintiff. Rather the motions addressed whether the owner of the car had given permission to the employer of the driver to use her car. The motion court should not have searched the record and awarded summary judgment to plaintiff against the employer of the driver of the car.

 

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IN A PROCEEDING INTERRUPTED BY COVID THE JUDGE RULED ON FATHER’S PETITION TO RELOCATE WITH THE CHILD AND MOTHER’S CROSS-PETITION FOR SOLE CUSTODY WITHOUT COMPLETING THE HEARING; REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have ruled on father’s petition to locate with the child to New Jersey and mother’s cross-petition for sole custody without completing the hearing:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “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” … . “[W]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required” … . Here, the Family Court erred in making a final custody determination without completing the hearing on the father’s petition and the mother’s cross-petition in order to determine what arrangement was in the best interests of the child … . Matter of Janvier v Santana-Jackson, 2023 NY Slip Op 05732 Second Dept 11-15-23

Practice Point: In the midst of COVID the judge ruled on father’s petition to relocate with the child and mother’s cross-petition for sole custody without completing the related hearing. Reversed.

 

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THE JUDGE GRANTED FATHER’S MOTION FOR SANCTIONS (ATTORNEY’S FEES) WITHOUT AFFORDING MOTHER AN OPPORTUNITY TO BE HEARD; THE JUDGE RULED ON FATHER’S MOTION AFTER DECIDING TO GRANT MOTHER’S MOTION FOR RECUSAL; REVERSED (SECOND DEPT). ​

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have awarded attorneys fees to father as sanctions for mother’s actions without affording mother an opportunity to be heard. In addition, the judge should not have ruled on  father’s motion for sanctions after deciding to grant mother’s motion for recusal:

… [T]he mother contends that the Family Court improvidently exercised its discretion in awarding the father reasonable attorneys’ fees without affording her a reasonable opportunity to be heard. We agree. Notably, the court never set a briefing schedule for the sanctions motion, and the court, in effect, denied the mother’s new counsel’s request to file opposition papers thereto. Under these circumstances, the mother did not receive a “reasonable opportunity to be heard” on the allegations in the sanctions motion … .

Additionally, the Family Court improvidently exercised its discretion by deciding the sanctions motion after indicating to the parties … that it intended to grant the mother’s motion for recusal. Matter of Hunte v Jones, 2023 NY Slip Op 05731, Second Dept 11-15-23

Practice Point: Here, after deciding to grant mother’s motion for recusal, the judge granted father’s motion for sanctions (attorney’s fees) without affording mother an opportunity to be heard. Reversed.

 

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THE PEOPLE WERE ALLOWED TO PRESENT EXPERT TESTIMONY ON CHILD PSYCHOLOGY AND CHILD ABUSE; DEFENDANT WAS DEPRIVED OF HIS RIGHT TO PRESENT A DEFENSE WHEN THE REQUEST TO PRESENT A REBUTTAL WITNESS WAS DENIED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defendant should have been allowed to present a witness to rebut the People’s expert testimony on child psychology and child abuse. Failure to allow the rebuttal witness deprived defendant of his right to a fair trial:

… Supreme Court did not err in permitting the People to call an expert witness in the field of child psychology and child sex abuse, notwithstanding any alleged delay in the People’s disclosure of the contents of the witness’s testimony, as the defendant failed to establish that he was prejudiced by the alleged delay … .

… Supreme Court improperly precluded the defendant from calling a rebuttal witness. The right to present a defense is a fundamental element of due process of law … , and, in the instant case, calling a rebuttal expert to testify was central to the defense case. … [T]here is no evidence that the People were prejudiced by the timing of the notice or that the delay was willfully motivated, inasmuch as the content of the People’s expert testimony was disclosed approximately one week prior.  People v Neustadt, 2023 NY Slip Op 05519, Second Dept 11-1-23

Practice Point: Here the denial of defendant’s request to present testimony rebutting the People’s expert denied defendant his right to present a defense (due process).

 

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THE DETECTIVE’S TESTIMONY, WITHOUT EVIDENCE FROM THE CONFIDENTIAL INFORMANT WHO MADE THE DRUG PURCHASES, WAS NOT ENOUGH TO DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH WARRANT; MATTER REMITTED FOR A DARDEN HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, held a Darden hearing was required to determine whether there was probable cause to justify the issuance of a search warrant. The testimony of the defective alone, without the evidence provided by the confidential informant (CI), did not demonstrate probable cause. Therefore the the matter was remitted and the appeal was held in abeyance pending the results of the Darden hearing:

“[A] Darden rule is necessary in order to fulfill the underlying purpose of Darden: insuring that the confidential informant both exists and gave the police information sufficient to establish probable cause, while protecting the informant’s identity. The surest way to accomplish this task is to produce the informant for an in camera examination” … . …

… [T]he detective’s on-the-scene observations during the two controlled drug buys fell short of probable cause without the information provided to him by the CI. Although the detective saw the CI walk toward the subject building and later return to the predesignated meeting location, he was unable to confirm that the CI had actually purchased the narcotics from the subject apartment … . … [W]e remit the matter … for an in camera hearing and inquiry in accordance with the guidelines set forth in Darden, and thereafter a report to this Court containing the Supreme Court’s findings following the hearing and inquiry. People v Huginnie, 2023 NY Slip Op 05516, Second Dept 11-1-23

Practice Point: Here evidence from the confidential informant who allegedly made the drug purchases was required to demonstrate probable cause for the search warrant. The appeal was held in abeyance and the matter was remitted for a Darden hearing.

 

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AFTER FINDING SPOLIATION OF EVIDENCE BY DEFENDANTS, THE JUDGE FASHIONED AN ADVERSE INFERENCE JURY INSTRUCTION TO BE GIVEN AT TRIAL; THE CHARGE IMPROPERLY REQUIRED, RATHER THAN PERMITTED, THE JURY TO FIND SPOLIATION; THE JUDGE WAS ORDERED TO REVISE THE CHARGE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the adverse inference jury charge was inappropriate because it requires, rather than permits, the jury to draw an adverse inference from the spoliation of evidence. The appeal was from the judge’s ruling on plaintiff’s motion for an adverse inference charge. The judge was directed to fashion a new adverse inference charge:

Upon its determination that defendants’ spoliation of evidence amounted to gross negligence, the court directed that the jury be instructed that “had the evidence been preserved the evidence would have been against defendants’ position that [defendant] Marom and/or his workers did not cut down branches or trees or inserted rotting garbage in the barriers on [plaintiff’s] property.” This adverse inference charge is inappropriate because it “requires, rather than permits, the jury to draw an adverse inference” … . In any event, because the conflicting testimony in the record raises questions concerning the existence of the purportedly spoliated evidence, the issues of whether any spoliation had occurred and whether any adverse inference is warranted should be presented to the jury in the first instance … . Children’s Magical Garden, Inc. v Marom, 2023 NY Slip Op 05464, First Dept 10-31-23

Practice Point: With respect to spoliation of evidence, an adverse inference charge should permit, rather than require, the jury to find spoliation.

Practice Point: It appears that this appeal was brought before trial to address the erroneous adverse inference charge fashioned by the judge. The appeal successfully required the revision of the erroneous charge before the jury heard it.

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; BASED UPON DEFENDANT’S STATEMENTS AT SENTENCING, THE JUDGE SHOULD HAVE INQUIRED ABOUT WHETHER DEFENDANT WISHED TO WITHDRAW HIS PLEA (THIRD DEPT). ​

​The Third Department, reversing defendant’s conviction by guilty plea, determined defendant’s waiver of appeal was invalid and, based upon defendant’s statements at sentencing, the judge should have inquired about whether defendant wished to withdraw his plea:

The People concede … that defendant’s waiver of the right to appeal is invalid, as County Court’s explanation of the waiver “failed to make clear to defendant that the appeal waiver was not a total bar to defendant taking an appeal, and the written waiver was similarly overbroad and did not clarify or supplement the court’s defective colloquy” … . … [D’efendant contends that his plea was not knowing, intelligent and voluntary based upon certain statements that he made at sentencing that raised potential defenses. “A trial court should conduct a hearing or further inquiry when at plea-taking or upon sentencing it appears the defendant misapprehends the nature of the charges or the consequences of the plea” … . “[S]tatements made by a defendant that negate an element of the crime to which a plea has been entered, raise the possibility of a particular defense or otherwise suggest an involuntary plea require the trial court to then conduct a further inquiry or give the defendant an opportunity to withdraw the plea” … .

At sentencing, defendant stated that he was “extremely remorseful and ashamed” for his actions in injuring the victim, but asserted that this occurred after he and the victim had consumed significant amounts of alcohol and the victim became “combative and physical . . . gouging my eyes and face with her fingernails, and then biting my lips, face and hands.” In explanation of his statement, defendant stated that he had wanted “to present evidence and [the] sequence of events.” Despite County Court’s agreement with the People’s voiced concerns that such statements raised the possibility of a defense, the court proceeded to sentence defendant without conducting a further inquiry and without providing him with an opportunity to withdraw his plea. People v Van Alstyne, 2023 NY Slip Op 05423, Third Dept 10-26-23

Practice Point: If the judge does not make it clear that an appeal waiver is not a complete bar to taking an appeal the waiver of appeal is invalid.

Practice Point: Here the defendant’s statements at sentencing raised the possibility of a defense to the charges. The judge should have inquired whether defendant wanted to withdraw his plea.

 

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