Judges – Page 49 – New York Appellate Digest

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.

November 15, 2023

Attorneys, Family Law, Judges

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.

November 15, 2023

Constitutional Law, Criminal Law, Evidence, Judges

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).

November 1, 2023

Criminal Law, Evidence, Judges

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.

November 1, 2023

Appeals, Evidence, Judges

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.

October 31, 2023

Appeals, Criminal Law, Judges

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.

October 26, 2023

Civil Procedure, Judges

A JUDGE CANNOT ENTER A JUDGMENT WHICH DOES NOT CONFORM TO THE ORDER; HERE THE JUDGMENT ELIMINATED MILLIONS OF DOLLARS IN DAMAGES AND EXTINGUISHED A DEFENDANT’S LIABILITY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the judge did not have the power to, sua sponte, enter an judgment which did not conform to its order. The judgment eliminated millions of dollars in damages and extinguished liability with respect to a defendant:

“A written order [or judgment] must conform strictly to the court’s decision, and in the event of an inconsistency between a judgment and a decision or order upon which it is based, the decision or order controls” … . A court exceeds its authority when it sua sponte vacates its prior order, as it “has no revisory or appellate jurisdiction, sua sponte, to vacate its own order” … . Here, the court exceeded its authority in entering the judgment, which effectively reversed or vacated its prior confirmation order without notice. Accordingly, the court is directed to enter a revised judgment that conforms to the confirmation order with respect to damages and liability. Magna Equities II, LLC v Writ Media Group Inc., 2023 NY Slip Op 05320, First Dept 10-19-23

Practice Point: A judge cannot effectively vacate a prior order by entering a judgment which does not conform to the order.

October 19, 2023

Attorneys, Family Law, Judges

FAMILY COURT DID NOT MAKE THE REQUIRED “SEARCHING INQUIRY” RE: WHETHER FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (FIRST DEPT).

The First Department, reversing Family Court, held the judge did not make the required “searching inquiry” to determine whether father was knowingly, intelligently and voluntarily waiving his right to counsel. Father had made a motion to vacate a final order of protection:

… [T]he court failed to conduct the requisite “searching inquiry” to ensure that the father’s waiver of his right to counsel was “knowing, intelligent, and voluntary” … . While the court advised both parties that they had the right to be represented by counsel, could seek an adjournment to speak to one, and that one might be appointed to them, the court did not question the father about his background, such as age, education, or occupation, and any prior experience of being a pro se litigant or being exposed to legal procedures … . It also did not caution the father against self-representation, detail the dangers and disadvantages of doing so, or inform him that he would have to follow the same legal rules as if he had been represented … . Thus, the court failed to evaluate the father’s competency to waive counsel and his understanding of the consequences of self-representation … . Matter of Marlene H. v Loren D.2023 NY Slip Op 05225, First Dept 10-17-23

Practice Point: The questions a judge must ask before a waiver of the right counsel will be deemed valid are concisely explained.

October 17, 2023

Criminal Law, Judges

DEFENDANT, IN THE PLEA COLLOQUY, SAID SHE ACTED IN SELF DEFENSE; AT THAT POINT THE JUDGE SHOULD HAVE MADE SURE SHE WAS AWARE SHE WAS WAIVING THE JUSTIFICATION DEFENSE (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the judge, based on the plea colloquy, should have questioned the defendant about her waiver of her right to present a justification defense:

The trial court failed to determine defendant’s understanding and waiver of her right to present a defense of justification after defendant stated, during the plea colloquy, “I had to defend myself” and “I wasn’t just the aggressor in the situation” (see People v Muniz-Cayetano, 186 AD3d 1169, 1171-1172 [1st Dept 2020] …). The People concede that the particulars of this case are indistinguishable from those of Muniz-Cayetano and that defendant’s guilty plea should be vacated. People v Williams, 2023 NY Slip Op 05195, First Dept 10-12-23

Practice Point: Here the defendant said she acted in self defense during the plea colloquy. At that point the judge should have made sure she knew about and was waiving the justification defense.

October 12, 2023

Attorneys, Criminal Law, Evidence, Judges

THE MAJORITY CONCLUDED THE ARGUMENT THAT DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TO READ THE INDICTMENT TO THE JURY TO SHOW THE DISCREPANCY BETWEEN THE ALLEGATIONS OF COERCION IN THE INDICTMENT AND THE PROOF AT TRIAL WAS RENDERED MOOT BY THE DISMISSAL OF THE COERCION COUNT; THE DISSENT ARGUED THE PROHIBITION DEPRIVED DEFENDANT OF THE RIGHT TO PUT ON A DEFENSE (THIRD DEPT).

The Third Department, over a partial dissent, determined defense counsel was properly prohibited from reading the indictment to the jury. Defense counsel sought to show that the allegations of coercion in the indictment differed from the proof presented by the People. Both the majority and the dissenter agreed that the proof of coercion was legally insufficient. Therefore the majority held defendant’s argument he should have been allowed to read the indictment to the jury was rendered moot. The dissent argued the prohibition deprived defendant of his right to present a defense:

In light of our conclusion, defendant’s contention that County Court erred in declining to charge the jury with certain lesser included offenses of coercion in the first degree has been rendered moot. The same is true with respect to defendant’s assertion that he was improperly prevented from reading the indictment to the jury during his opening statement and closing argument. That is, as limited by his appellate brief, the only particular claim articulated by defendant concerning this issue is that he should have been allowed to highlight for the jury the discrepancy between the allegation listed in the indictment relative to the coercion count and the proof expected to be presented or actually presented at trial, which is the very basis upon which that count has now been dismissed.

From the dissent:

… [D]efendant’s trial strategy hinged on showing that the People had not proven the factual allegations in the indictment, and that County Court stymied that strategy by repeatedly refusing to allow defense counsel to read the indictment to the jury. County Court’s refusal to allow defense counsel to read the indictment to the jury in his opening statement violated defendant’s statutory right to “present[ ] his view of the case” in an opening statement that highlighted what he believed would be weaknesses in the People’s proof … . People v Knapp, 2023 NY Slip Op 05168, Third Dept 10-12-23

Practice Point: Defense counsel wanted to read the indictment to the jury to show the discrepancy between the allegations of coercion and the proof presented at trial. County Court ruled defense counsel could not read the indictment to the jury. The majority held the issue was moot because the coercion count was dismissed because the evidence was deemed legally insufficient. The dissent argued the prohibition deprived defendant of his right to put on a defense.