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IN THIS CHILD VICTIMS ACT ACTION, THE JUDGE CORRECTLY STRUCK INFLAMMATORY LANGUAGE FROM THE COMPLAINT BUT SHOULD NOT HAVE SEALED THE COMPLAINT WITHOUT MAKING WRITTEN FINDINGS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the judge was correct in striking inflammatory language from this Child Victims Act complaint but should not have sealed the complaint:

Pursuant to CPLR 3024 (b), “[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.” “[I]t is generally held that the test under this section is whether the allegation is relevant, in an evidentiary sense, to the controversy and, therefore, admissible at trial” … . Although “factual averments about sexual abuse are necessary in any action where those allegations form the predicate for an award of damages, to state a cause of action generally and pursuant to the CVA [Child Victims Act] specifically” … , the language struck by the court does not contain any factual averments necessary to plaintiff’s causes of action. Further, the court’s decision to strike the inflammatory language does not preclude plaintiff from attempting to prove at the trial stage that defendant committed acts of sexual abuse against her. We thus conclude that “there is no prejudice to plaintiff as a result of the order, whereas if [the language is] not stricken prejudice may result to defendant” … .

We further conclude, however, that the court erred in granting that part of the cross-motion seeking to seal the complaint without making “a written finding of good cause, . . . specify[ing] the grounds thereof,” as required by 22 NYCRR 216.1 (a) … . LG 101 Doe v Wos, 2023 NY Slip Op 02404, Fourth Dept 5-5-23

Practice Point: In this Child Victims Act case, the judge properly struck inflammatory language from the complaint but should not have sealed the complaint absent written findings of good cause.

 

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THE DEPRAVED INDIFFERENCE MURDER JURY INSTRUCTION DID NOT PROPERLY EXPLAIN THAT DEPRAVED INDIFFERENCE IS THE DEFENDANT’S MENTAL STATE AT THE TIME OF THE CRIME, NOT THE OBJECTIVE CIRCUMSTANCES UNDER WHICH THE HOMICIDE OCCURRED; APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE; WRIT OF CORAM NOBIS GRANTED AND NEW TRIAL ORDERED (THIRD DEPT).

The Third Department (1) granted the writ of coram nobis based upon appellate counsel’s failure to raise the issue, and (2) ordered a new trial on the second degree murder charge because the jury instruction on depraved indifference was defective. Although the issue was not preserved, the Third Department considered it in the interest of justice:

Defendant asserts that County Court’s instructions to the jury regarding depraved indifference murder were consistent with the overruled objective standard set forth in People v Register (60 NY2d 270 [1983] …), and therefore the court’s instructions failed to explain the requisite culpable mental state as required by People v Feingold (7 NY3d 288 [2006]). We agree. In discharging its duty to deliver a charge to the jury, “[a] court must instruct the jury regarding both the ‘fundamental legal principles applicable to criminal cases in general’ and those ‘material legal principles applicable to the particular case’ ” (… CPL 300.10 [1], [2]). At the time of defendant’s trial, the Court of Appeals had already held that “depraved indifference to human life is a culpable mental state” … . As a result, “under Feingold, it is not the circumstances under which the homicide occurred that determines whether [a] defendant is guilty of depraved indifference murder, but rather [the] defendant’s mental state at the time the crime occurred” … .

Upon our review of the record, which reflects that County Court had twice instructed the jury with the overruled objective standard, “the jury charge did not unambiguously state that depraved indifference was the culpable mental state for the crime with which defendant was charged, [and therefore] we cannot conclude that the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at a decision” … . People v Weaver, 2023 NY Slip Op 02352, Third Dept 5-4-23

Practice Point: The depraved indifference jury instruction was similar to the overruled objective standard requiring a new trial. Depraved indifference is the defendant’s mental state at the time of the crime, not the circumstances of the commission of the homicide.

Practice Point: Although the issue was not preserved, appellate counsel was ineffective for failing to raise it on appeal. Here the writ of coram nobis was granted, the conviction reversed and a new trial ordered.

 

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THE MOTION TO VACATE THE DEFAULT ON LAW-OFFICE-FAILURE GROUNDS SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff’s motion to vacate the default on law-office-failure grounds should have been granted:

Plaintiff established a reasonable excuse for his default in failing to timely file his cross motion and opposition to defendants’ motion for summary judgment. Plaintiff’s counsel stated that he mistakenly believed that the papers could be filed at any time on the return date of December 15, 2021, and that the e-filing at 10:58 p.m. on that date was timely, despite the fact that the papers were, in fact, due to be filed two days before the return date. Thus, the default resulted from law office failure, which a court may excuse in its discretion (CPLR 2005 …). Moreover, there was no evidence that the default was deliberate or part of a pattern of dilatory conduct by plaintiff … .

Although plaintiff did fail to provide defendants with time to reply to his cross motion, thus causing prejudice to them, this error should have been remedied by granting defendants a brief adjournment, in view of the strong public policy of resolving cases on the merits, rather than by granting a default judgment … . The record also raises issues about defendants’ own conduct in connection with their motion, namely their submission of the motion for summary judgment just a few days before the court-imposed deadline for complying with a subpoena issued by plaintiff, and their failure to comply with an order directing production of responsive documents.

Furthermore, plaintiff made a prima facie showing of a meritorious claim … . Giordano v Giordano, 2023 NY Slip Op 02381, First Dept 5-4-23

Practice Point: Here law-office-failure was deemed an adequate ground for vacating the default judgment. Any prejudice caused by the late filing of motion papers could have been avoided by a brief adjournment.

 

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THE DEFENSE REQUEST FOR THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the defense request for the circumstantial-evidence jury instruction should have been granted;

The court should have granted defendant’s request for a circumstantial evidence charge. There was no direct evidence establishing defendant’s participation in the conspiracy … , and the People do not argue otherwise. The court’s standard instructions on reasonable doubt and inferences to be drawn from evidence did not suffice, because they did not make the jury aware of its duty to apply the circumstantial evidence standard to the People’s entire case and exclude beyond a reasonable doubt every reasonable hypothesis of innocence … . The error was not harmless, because the circumstantial evidence of defendant’s involvement in the conspiracy was not overwhelming.

However, because the verdict was based on legally sufficient evidence and was not against the weight of the evidence, there is no basis for dismissal of the indictment. People v Garcia, 2023 NY Slip Op 02392, First Dept 5-4-23

Practice Point: The judge’s jury instruction did not make it clear the circumstantial evidence standard applied to the entire case. New trial ordered.

 

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SETTING A RETURN DATE LESS THAN 20 DAYS FROM THE DATE OF SERVICE OF THE ARTICLE 78 PETITION WAS NOT, UNDER THE FACTS, A JURISDICTIONAL DEFECT; THE PETITION SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the failure to provide the requisite 20-day notice in an Article 78 petition, under the facts, was not a jurisdictional defect and the dismissal of the petition was an abuse of discretion. Petitioners sought to contest a ruling of the NYS Office of Children and Family Services which refused to find a maltreatment report unfounded re: one of the petitioners:

Pursuant to CPLR 7804 (c), “a notice of petition, together with the petition and affidavits specified in the notice, shall be served . . . at least [20] days before the time at which the petition is noticed to be heard.” However, CPLR 2001, which has been held to apply to service defects … , authorizes a court to “permit a mistake, omission, defect or irregularity . . . to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.” In deciding whether a defect in service is a “technical infirmity” within the scope of CPLR 2001, “courts must be guided by the principle of notice to the [respondent] — notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” … .

… [I]t is … wholly undisputed that the subject application was not heard on the return date proposed by petitioners, nor was there any appearance before Supreme Court, either held or calendared, prior to respondents’ motion. It is further undisputed that, apart from failing to strictly comply with CPLR 7804 (c), petitioners properly served respondents. Thus, this case is functionally no different than those in which a return date has been omitted from a notice of petition, and such failures have been held to be technical infirmities within the scope of CPLR 2001 … . Given these facts, although the return date on the notice of petition was defective at the time of service, we find that the service effectuated by petitioners was reasonably calculated to apprise respondents of this proceeding and afford them the opportunity to defend against it … . Matter of Naomi R. v New York State Off. of Children & Family Servs., 2023 NY Slip Op 02362, Third Dept 5-4-23

Practice Point: Here, under the facts, the failure to provide the required 20-day notice (service at least 20 days before the return date) for an Article 78 petition did not prejudice the respondent and was not a jurisdictional defect. The petition should not have been dismissed.

 

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THE JUDGE DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, DISMISS THE FORECLOSURE COMPLAINT FOR PLAINTIFF’S ALLEGED FAILURE TO APPEAR AT A STATUS CONFERENCE AND COMPLY WITH THE DIRECTIVE TO MOVE FOR AN ORDER OF REFERENCE BY A SPECIFIED DATE; PRECEDENT TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department, rejecting its own precedent in this foreclosure action, determined the judge did not have the authority to, sua sponte, dismiss the complaint for plaintiff’s failure to comply with the directive to appear at a status conference and move for an order of reference by a specified date:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . The plaintiff’s failure to comply with the directive in the order dated September 13, 2017, was not a sufficient ground upon which to direct dismissal of the complaint … . Moreover, the court was without authority to, sua sponte, direct dismissal of the complaint based upon the plaintiff’s failure to comply with its directive to proceed by motion where, as here, the plaintiff was entitled to proceed either by motion or trial … . …

… 22 NYCRR 202.27 was not a proper basis for directing dismissal of the complaint … . Where a party appears as scheduled, 22 NYCRR 202.27 “provides no basis for the court to summarily dismiss the action for failure to prosecute” … . Nothing in the record establishes that the plaintiff did not appear or was not ready to proceed at the final status conference … . To the extent our cases have held that a failure to comply with a directive in a prior status conference order amounts to a nonappearance at the status conference or a failure to announce readiness to proceed “immediately or subject to the engagement of counsel” within the meaning of 22 NYCRR 202.27 … , such cases should no longer be followed … . “In general, [t]he procedural device of dismissing a complaint for undue delay is a legislative creation, and courts do not possess the inherent power to dismiss an action for general delay” … where, as here, the statutory preconditions to dismissal under CPLR 3216, which is the statutory provision addressing “[w]ant of prosecution,” have not been met…. . U.S. Bank N.A. v Bhagwandeen, 2023 NY Slip Op 02349, Second Dept 5-3-23

Practice Point: A judge’s authority to dismiss a complaint in the absence of the statutory conditions in CPLR 3216 (failure to prosecute) is extremely limited. Here in this foreclosure action the Second Department rejected its own precedent and held plaintiff’s alleged failure to appear at a status conference and comply with the directive to move for an order of reference by a specified date did not justify the sua-sponte dismissal of the complaint.

 

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JOINT LEGAL CUSTODY TO MOTHER AND FATHER AND PRIMARY CUSTODY TO FATHER WERE NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this divorce proceeding, determined the award of joint legal custody and the award of primary custody to father were not supported by the evidence. The hostility between father and mother and father’s violent behavior were not given proper consideration:

“Entrusting the custody of young children to their parents jointly, especially where the shared responsibility and control includes alternating physical custody, is insupportable when parents are severely antagonistic and embattled” … . In determining whether joint legal custody is appropriate, “the question of fault is beside the point” … . …

… [T]he court failed to give adequate weight to the father’s extensive history of domestic violence or his continued minimization of his actions and denial of the nature and extent of his mental illness. The evidence established that the father engaged in multiple acts of domestic violence against the mother in the presence of the children. Despite having been convicted of and serving a jail sentence for one of those acts, the father continued to deny that he had ever engaged in domestic violence. Further, although the father has been diagnosed, by more than one provider, with a bipolar disorder, he testified at trial that he could not recall ever having been given such a diagnosis. Both the mother and the father testified that the father had discontinued the use of his prescribed medications without discussing it with his treatment providers. The father had also threatened to commit suicide on more than one occasion, prompting calls to the police that resulted in brief hospitalizations for which the father blamed the mother. At the time of the trial, the evidence established that the father’s current medication regimen was inappropriate for Bipolar Disorder treatment and that the father was not currently engaged in any regular mental health counseling. Crofoot v Crofoot, 2023 NY Slip Op 02205, Fourth Dept 4-28-23

Practice Point: The hostility between mother and father and father’s violent behavior and mental illness were not given appropriate weight when the court awarded joint legal custody to mother and father and primary custody to father.

 

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THE JUDGE IMPROPERLY DISMISSED A JUROR WHEN SHE DIDN’T APPEAR WITHOUT MAKING AN INQUIRY; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, over a concurrence, determined judge improperly dismissed a juror in the absence of an adequate inquiry:

After juror No. 1 was selected and sworn in, but before jury selection had concluded, County Court made a record that juror No. 1 “needed to go home due to some health issues” but was advised, and agreed, to return the next day at 9:00 a.m. However, as of 9:28 a.m. the next morning, the court noted that juror No. 1 had not returned and, because the juror had left ill the prior day, the court found it “necessary to just replace her with the first alternate at this point.” Defense counsel then registered an exception to the court’s replacement of juror No. 1 … . Thereafter, County Court failed to conduct any inquiry regarding the absence of juror No. 1. When asked whether the court had received any notification from the juror, the court responded, “No. Basically, I don’t have juror number one. She’s just plain not here. She left early yesterday ill . . . . So, we are going to replace juror number one.” Although replacement of a juror is generally left to the court’s discretion, “[w]ithout a reasonably thorough inquiry, . . . the exercise of the court’s discretion on the ultimate issue of whether or not to replace the juror [was] uninformed” … .. County Court was certainly not required to wait two hours before substituting juror No. 1, but, on the record before us, it impermissibly presumed that she was “unavailable for continued service without conducting the requisite reasonably thorough inquiry and determining that [the] juror [was] not likely to appear within two hours” … . People v Watts, 2023 NY Slip Op 02144, Third Dept 4-27-23

Practice Point: Here a juror didn’t show up at 9:30 a.m. and the judge replaced her without making an inquiry. Defense counsel preserved the error by registering an exception. A new trial was ordered.

 

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THIS FAMILY OFFENSE PROCEEDING WAS REMITTED TO FAMILY COURT; APPELLATE REVIEW WAS NOT POSSIBLE IN THE ABSENCE OF FINDINGS OF FACT ADDRESSING CONFLICTING EVIDENCE AND THE CREDIBILITY OF WITNESSES (SECOND DEPT).

The Second Department, remitting the matter to Family Court in this family offense proceeding, noted that appellate review was impossible without findings of fact:

The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record … .

Effective appellate review requires that appropriate factual findings be made by the hearing court since it is the court best able to measure the credibility of the witnesses … . In granting or denying a petition for an order of protection, the Family Court must state the facts deemed essential to its determination (see CPLR 4213[b] … ). Remittal is not necessary, however, where the record is sufficient for this Court to conduct an independent review of the evidence … .

Here, the Family Court, which was presented with sharply conflicting accounts by the parties regarding their allegations, issued mutual orders of protection without setting forth any findings with respect to the credibility of the parties or the facts deemed essential to its determinations (see CPLR 4213[b]). Since the record presents factual issues, including questions of credibility, and in light of the conflicting allegations made by the parties against each other, resolution thereof is best left to the court of first instance … . Matter of Sealy v Peart, 2023 NY Slip Op 02128, Second Dept 4-26-23

Practice Point: Here in this family offense proceeding appellate review was not possible because the Family Court judge did not make any findings addressing conflicting evidence and the credibility of witnesses. The matter was remitted because the record was not sufficient for an independent review.

 

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THE BRAKES FAILED ON A LIMOUSINE OWNED BY PETITIONER AND 20 PEOPLE DIED; PETITIONER PLED TO 20 COUNTS OF CRIMINALLY NEGLIGENT HOMICIDE AND, PURSUANT TO A PLEA AGREEMENT, WAS SENTENCED TO PROBATION AND COMMUNITY SERVICE; BECAUSE OF A TECHNICAL DEFECT IN THE SENTENCE, PETITIONER APPEARED FOR RESENTENCING BEFORE A DIFFERENT JUDGE WHO DECIDED TO IMPOSE PRISON TIME; PETITIONER WITHDREW HIS PLEA, THE MATTER WAS SET FOR TRIAL AND PETITIONER BROUGHT THIS ARTICLE 78 PROCEEDING TO REINSTATE THE ORIGINAL SENTENCE; THE PETITION WAS DENIED OVER A DISSENT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, over a dissent. denied the petition to reinstate the original sentence in the prosecution of the owner of a limousine service. The brakes failed on one of petitioner’s limousines and the driver, 17 passengers and two pedestrians were killed. Petitioner pled guilty to 20 counts of criminally negligent homicide and was sentenced to two years of interim probation, community service, followed by a period of probation. When it was discovered that the two-year interim probation was illegal, petitioner appeared before a different judge for resentencing, the respondent in this proceeding. The respondent refused to abide by the plea agreement and informed the petitioner he would impose a prison sentence. Petitioner withdrew his plea and the case was set down for trial. Petitioner then brought this Article 78 petition seeking a writ of mandamus, a writ of prohibition and specific performance of the plea agreement. In a complex ruling too detailed to fairly summarize here, the relief was denied. The dissenter argued petitioner was entitled to specific performance of the plea agreement:

Mandamus to compel is an extraordinary remedy, commanding “an officer or body to perform a specified ministerial act that is required by law to be performed. It does not lie to enforce a duty that is discretionary” … . * * *

“… [I]mposing a criminal sentence is never ministerial” … . * * *

… [A] review of the merits leads us to conclude that the issuance of a writ [of prohibition] is unwarranted … . A “defendant [is not] entitled to specific performance of [a] plea bargain unless he [or she has] been placed in a ‘no-return position’ in reliance on the plea agreement” … . Matter of Hussain v Lynch, 2023 NY Slip Op 02049, Third Dept 4-20-23

Practice Point: This opinion should be consulted for the criteria for a writ of mandamus versus a writ of prohibition in the context of requiring a judge to abide by a plea agreement.

 

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