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PLAINTIFF’S DAUGHTER SHOULD NOT HAVE BEEN APPOINTED TO SERVE AS THE INTERPRETER FOR HER MOTHER’S DEPOSITION IN THIS MEDICAL MALPRACTICE CASE; THE CRITERIA FOR ALLOWING A RELATIVE TO SERVE AS AN INTERPRETER ARE EXPLAINED (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Wooten, determined the plaintiff’s daughter should not have been appointed an interpreter for plaintiff’s deposition in this medical malpractice action. The opinion lays out the criteria for when a relative could be allowed to act as an interpreter:

… [W]e hold that the appointment of an individual to serve as interpreter for a relative or to serve as interpreter in an action or proceeding in which the interpreter has personal knowledge of the relevant facts is only permissible under exceptional circumstances. In evaluating whether such circumstances are present, courts must consider the following: (1) whether sufficient information has been disclosed by the party in need of an interpreter to the court and to opposing parties so as to allow for a thorough search for a disinterested interpreter; (2) whether an exhaustive and meaningful search has been conducted for a disinterested interpreter; (3) whether the potential interpreter is the least interested individual available to serve as interpreter; and (4) whether the potential interpreter is capable of objectively translating the testimony verbatim, which may only be assessed after the court has conducted an inquiry of the potential interpreter. Unless the court is satisfied that each of these four elements has been satisfied, then the potential interpreter must not be permitted to serve as interpreter in view of the “danger that [the] witness’ [testimony] will be distorted through interpretation,” “either consciously or subconsciously” … .Zhiwen Yang v Harmon, 2023 NY Slip Op 00893, Second Dept 2-15-23

Practice Point: Here the plaintiff’s daughter should not have been appointed to serve as the interpreter for her mother’s deposition in this med mal case. The court laid out guidelines for the extraordinary circumstances in which a party’s relative may act as the interpreter.

 

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A RESTITUTION HEARING IS REQUIRED WHEN (1) THE DEFENDANT REQUESTS IT, AND (2) WHEN THE EVIDENCE OF THE AMOUNT IS INSUFFICIENT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Wooten, clarified when a restitution hearing is required:

Pursuant to Penal Law § 60.27, in sentencing a criminal defendant, the court may require the defendant to pay restitution of the fruits of an offense for which he or she was convicted. Under certain circumstances set forth in the statute, the court must first conduct a hearing to determine the appropriate amount of restitution. However, this Court’s case law has not consistently articulated the circumstances which trigger the need for a restitution hearing in accordance with the statute. Thus, we take this opportunity to clarify that a restitution hearing is required when either (1) the defendant requests such a hearing, or (2) the record does not contain sufficient evidence to establish the appropriate amount of restitution. People v Chung, 2023 NY Slip Op 00880, Second Dept 2-15-23

Practice Point: A restitution hearing is required when a defendant requests it and when the evidence of the amount is insufficient.

 

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THE JUDGE CANNOT, SUA SPONTE, DIRECT ARBITRATION WITHOUT A REQUEST FROM A PARTY; NON-SIGNATORIES TO AN AGREEMENT CONTAINING A FORUM SELECTION PROVISION MAY BE BOUND BY THE PROVISION IF THEY ARE SIGNATORIES TO A RELATED AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Connolly, interpreted jurisdiction, forum selection and arbitration provisions in the subject agreements. The decision is fact-specific and cannot be fairly summarized here. The court summarized its rulings as follows:

This appeal presents novel questions related to jurisdiction, as well as arbitration and forum selection provisions in agreements. The first question is whether, upon reviewing an agreement and determining that an arbitration provision governs, a court should, sua sponte, direct the parties to arbitrate. We hold that a court should not direct parties to arbitrate absent a request from one of the parties.

The second question requires us to examine the circumstances under which non-signatories to an agreement containing a forum selection provision may be bound by that provision consistent with due process. We hold that non-signatories to an agreement may be bound by that agreement’s forum selection provision when they are signatories to a related agreement, which forms part of the same transaction, and are closely related to both the transaction and one of the signatories to the agreement containing the forum selection provision. P.S. Fin., LLC v Eureka Woodworks, Inc., 2023 NY Slip Op 00877, Second Dept 2-15-23

Practice Point: A judge should not, sua sponte, direct parties to arbitrate pursuant to an agreement absent a request from a party.

Practice Point: Non-signatories may be bound by a forum selection provision in an agreement if they are signatories to a related agreement.

 

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THE JUDGE IN THIS CUSTODY PROCEEDING SHOULD NOT HAVE SUSPENDED FATHER’S PARENTAL ACCESS WITHOUT HOLDING A “BEST INTERESTS” HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge in this custody proceeding should not have suspended father’s parental access without holding a “best interests of the child” 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 Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties’ children … . Moreover, the court’s mere reliance upon “adequate relevant information,” as opposed to admissible evidence, was improper … . Matter of Dysko v Dysko, 2023 NY Slip Op 00863, Second Dept 2-15-23

Practice Point: Here in this custody action the judge should not have suspended father’s parental access without holding a “best interests of the child” hearing.

 

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THE TRIAL JUDGE DID NOT RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL; THE APPELLATE COURT CANNOT TREAT THE FAILURE TO RULE AS A DENIAL; MATTER REMITTED FOR A RULING (FOURTH DEPT). ​

The Fourth Department, remitting the matter for a ruling, determined the trial judge never ruled on defendant’s motion for a trial order of dismissal:

At the close of the People’s case, defendant moved for a trial order of dismissal, arguing … that the People failed to make a prima facie case with respect to the second count of the indictment. There is no indication in the record that the court ruled on that part of defendant’s motion. We lack the power to review defendant’s contention that the evidence is legally insufficient to support the conviction of burglary in the second degree because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . People v Desmond, 2023 NY Slip Op 00791, Fourth Dept 2-10-23

Practice Point: The trial judge’s failure to rule on a motion for a trial order of dismissal is not a denial which an appellate court can consider; here the matter was remitted for a ruling.

 

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EVEN THOUGH DEFENDANT CLAIMED THE STABBING INJURIES WERE ACCIDENTAL, HE WAS ENTITLED TO A JURY INTSTRUCTION ON THE JUSTIFICATION DEFENSE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant was entitled to have the jury instructed on the justification defense despite his claim the stabbing injuries were an accident. Defendant alleged the complainant attacked him with a knife and, in self-defense, he grabbed her arm and pinned it behind her back, causing the injuries. The court noted that the trial judge stuck with his opinion the justification defense is not available when it is alleged the injury was accidental or unintentional after he was presented with case law to the contrary:

It has long been settled law that “[a] defendant is entitled to a justification charge if there is some reasonable view of the evidence to support it, even if the defendant alleges that the victim’s injuries were accidentally inflicted” … . That is so because “the defense of justification applies fully to a defendant’s risk-creating conduct, even though it had unintended consequences” … . Here, defendant’s statements during his interview with a police investigator, an audio recording of which was introduced in evidence by the People, indicated that the stabbing injuries sustained by the complainant were the unintended result of defendant’s defensive maneuvers. In particular, defendant asserted that the complainant, while intoxicated, confronted him with a knife and swung it at him, thereby prompting him to act defensively by twisting the complainant’s arm behind her back with the knife still in her hand and pinning it against her. Contrary to the court’s determination, defendant’s statements “do[ ] not defeat his entitlement to a justification charge” … . People v Rayford, 2023 NY Slip Op 00786, Fourth Dept 2-10-23

Practice Point: A defendant’s claim that the injuries were accidentally or unintentionally inflicted does not necessarily preclude a jury instruction on the justification defense.

 

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THE JUDGE’S FAILURE TO MAKE FINDINGS OF FACT IN THIS CUSTODY CASE PRECLUDED APPELLATE REVIEW; MATTER REMITTED (FOURTH DEPT),

The Fourth Department, remitting the matter to Family Court, determined the judge’s failure to make findings of fact in this custody case precluded appellate review:

The court, in the order on appeal, however, failed to make any factual findings whatsoever to support the award of primary physical custody. It is “well established that the court is obligated ‘to set forth those facts essential to its decision’ ” … . Here, the court completely failed to follow that well-established rule when it failed to issue any factual findings to support its initial custody determination … , nor did it make any findings with respect to the relevant factors that it considered in making a best interests of the child determination … . “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . Matter of Ianello v Colonomos, 2023 NY Slip Op 00767, Fourth Dept 2-10-23

Practice Point: Here in this custody case the judge did not make findings of fact, which precluded appellate review. The case was sent back.

 

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THE JUDGE SHOULD NOT HAVE LEFT IT TO THE AGENCY TO DETERMINE FATHER’S VISITATION AND SHOULD NOT HAVE MADE THERAPEUTIC COUNSELING A PREREQUISITE FOR VISITATION (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Family Court determined (1) the judge should not have left it to the agency to decide whether father should receive visitation, and (2) father’s participation in therapeutic counseling should not have been made a prerequisite to unsupervised overnight weekend visitation:

… [T]he court erred in failing to set an appropriate supervised visitation schedule by implicitly leaving it to the agency to determine whether the father would receive any such visitation … .

… “Although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation” … . Matter of Bonilla-Wright v Wright, 2023 NY Slip Op 00756, Fourth Dept 2-10-23

Practice Point: Family Court cannot delegate its authority to determine whether father will receive visitation or its authority to set up a visitation schedule. Therapeutic counseling can not be made a prerequisite for visitation or custody.

 

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THE JUDGE FAILED TO INQUIRE FURTHER DURING THE PLEA ALLOCUTION WHEN DEFENDANT SAID HE DID NOT VIOLATE THE ORDER OF PROTECTION INTENTIONALLY; THERE IS NO NEED TO PRESERVE A DEFECTIVE-ALLOCUTION ERROR; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of an aggravated family offense by guilty plea, determined the judge should have inquired further when defendant stated he did not intend to violate the order of protection when he sent a letter to the protected person. A defective allocution will be considered on appeal in the absence of preservation:

… [A]fter acknowledging his awareness of the valid and effective order of protection directing him to have no contact with the protected person, defendant stated that he “didn’t intentionally violate” the order of protection by sending the protected person a letter and instead asserted that any violation “was unintentional.” Following an off-the-record discussion between defendant and defense counsel, defendant admitted that sending the letter did, in fact, violate the order of protection, but the court did not inquire, and defendant never clarified, whether his conscious objective was to disobey the order of protection … . Contrary to the People’s assertion, which “conflates the culpable mental states for acts done ‘intentionally’ … and those done ‘knowingly’ … , this is not a case in which defendant’s “further statements removed any doubt regarding th[e requisite] intent” … . People v Vanwuyckhuyse, 2023 NY Slip Op 00754, Fourth Dept 2-10-23

Practice Point: The defendant said he did not intend to violate the order of protection during the plea allocution and the judge did not make the required inquiry. An allocution error need not be preserved for appeal by moving to withdraw the plea. The conviction was reversed.

 

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HERE IT WAS REVERSIBLE ERROR TO PLACE THE DEFENDANT IN HANDCUFFS, WITHOUT EXPLANATION, BEFORE THE JURY RETURNED TO ANNOUNCE THE VERDICT; AT THAT POINT THE DEFENDANT IS CONSIDERED INNOCENT AND RESTRAINING THE DEFENDANT WITHOUT EXPLANATION IS CONSTITUTIONALLY PROHIBITED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the defendant should not have been handcuffed when the jury returned to announce the verdict: At that point the defendant is considered innocent and the defendant may be prejudiced if the jury is polled. Here defense counsel expressly objected to the handcuffs on those grounds:

… [T]he reading of the verdict is an integral part of the guilt-determination phase. … “[A] verdict reported by the jury is not final unless properly recorded and accepted by the court” … . Indeed, in accordance with CPL 310.80, the trial court must order the jury to resume deliberations when polling elicits a negative answer from one or more jurors. As a consequence, until the jury returns to the courtroom, publicly announces the verdict and, if polled, confirms the verdict, there is no finding of guilt, defendant is still presumed innocent, and the constitutional prohibition on restraining a defendant without explanation remains in full force. People v Sanders, 2023 NY Slip Op 00692, CtApp 2-9-23

Practice Point: Restraining a defendant during the guilt-determination phase of the trial in unconstitutional unless adequately explained. A defendant is considered innocent until the verdict is announced and the jury is polled. In this case it was deemed reversible error to place the defendant in handcuffs, without explanation, over defense counsel’s objection, before the jury returned with the verdict.

 

 

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