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THE MOTION TO AMEND THE COMPLAINT SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE PROPOSED CHANGES WERE NOT “REDLINED” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to amend the complaint should not have been denied on the ground the proposed changes were not “redlined” (apparently referring to the failure to mark the proposed changes to make them more visible):

The court improvidently exercised its discretion in denying plaintiff’s cross motion solely on the technical basis that the proposed amended complaint was not redlined (see CPLR 3025[b]), since the proposed amendments to add the third-party defendants as direct defendants were sufficiently described in the moving papers and easily discerned on review of the proposed amended summons and complaint … . Herrera v Highgate Hotels, L.P., 2023 NY Slip Op 00729, First Dept 2-9-23

Practice Point: Although CPLR 3025 (b) requires that “Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.” the motion to amend here should not have been denied because the proposed changes were not “redlined.” The accompanying papers sufficiently described the proposed changes.

 

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THE PLEA ALLOCUTION RAISED THE POSSIBILITY OF DURESS AS AN AFFIRMATIVE DEFENSE; THE JUDGE MADE NO INQUIRY INTO THE VALIDITY OF PLEA; CONVICTION REVERSED DESPITE DEFENDANT’S FAILURE TO MOVE TO WITHDRAW THE PLEA (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined the plea allocution raised duress as a possible affirmative defense and the judge did not inquire into the validity of the plea. The issue was considered on appeal despite the failure to move to withdraw the plea:

To be valid, a plea of guilty must be entered voluntarily, knowingly, and intelligently … . Generally, a defendant must preserve for appellate review a challenge to the validity of a guilty plea … . When, however, a “defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea,” the court has a duty to inquire further to make sure that the defendant understands the nature of the charge and that the plea has been intelligently entered … . Where the court failed in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … .

In this case, the defendant’s contention challenging the validity of his plea of guilty is unpreserved for appellate review since he did not move to withdraw his plea or otherwise raise that issue prior to the imposition of sentence … . However, the County Court’s failure to inquire into the validity of the plea after the defendant’s allocution raised the possibility of an affirmative defense based on duress (see Penal Law § 40.00) permits the defendant to challenge the sufficiency of the allocution on direct appeal, and requires reversal of the judgment of conviction … . People v Rodriguez, 2023 NY Slip Op 00678, Second Dept 2-8-23

Practice Point: Here the defendant’s allocution raised the possibility he had duress as an affirmative defense but the judge made no inquiry into the validity of the plea. Despite the defendant’s failure to preserve the error by moving to withdraw the plea, the appellate court reversed his conviction.

 

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AFTER COMPLAINING THAT A JUROR APPEARED TO BE SLEEPING AT TIMES, DEFENSE COUNSEL MADE A MOTION TO DISQUALIFY HIM; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY BEFORE DENYING THE MOTION; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge did not make a sufficient inquiry of juror number 2 after complaints from defense counsel and the prosecutor that he appeared to be sleeping at times. The judge’s denial of the defense motion to disqualify the juror was therefore based on speculation:

The court never asked juror number two during any of the inquiries if he had fallen asleep or was sleepy. During the third inquiry, the court did not ask juror number two about defense counsel’s specific observations, including that juror number two had allegedly put his head back with his eyes closed and his mouth dropped. The court also failed to ask juror number two what he meant by his equivocal statement that he “[m]ore or less” understood the jury charge, or to ask if there were any specific portions of the jury charge that juror number two did not understand. Although the court did state at one point that “[w]e have not seen [juror number two] sleeping,” the statement, in context, indicates that the court was correcting defense counsel’s misstatement, rather than making its own observation. Likewise, a statement by a court officer that he had not observed juror number two sleeping was not determinative in this case because defense counsel’s assertion that the officer was seated behind juror number two was uncontradicted … . Since the court failed to ask during the third inquiry whether juror number two had fallen asleep during the jury charge, whether he had difficulty staying awake, or about any of defense counsel’s specific observations, its determination that juror number two was not grossly unqualified to serve was based on speculation … . People v Mentor, 2023 NY Slip Op 00677, Second Dept 2-8-23

Practice Point: When it appears a juror has been sleeping at times and a motion to disqualify the juror is made, the judge must make a sufficient inquiry before ruling on the motion. Here the denial of the motion to disqualify was not preceded by a sufficient inquiry and defendant’s conviction was reversed.

 

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THE JUDGE’S FAILURE TO INFORM DEFENDANT OF POSTRELEASE SUPERVISION RENDERED DEFENDANT’S ADMISSION TO A PROBATION VIOLATION INVALID; THE ISSUE WAS CONSIDERED ON APPEAL DESPITE THE ABSENCE OF A MOTION TO WITHDRAW THE ADMISSION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge’s failure to inform defendant of postrelease supervision rendered the admission invalid. The issue may be raised on appeal despite the absence of a motion to withdraw the plea:

Defendant contends that his admission was not knowing, voluntary and intelligent because County Court failed to inform him at any time that he would be subject to postrelease supervision if the court sentenced him to prison. We agree. The People contend that defendant’s challenge to the voluntariness of his admission is not preserved for our review, inasmuch as he failed to move to withdraw his admission, but we reject that contention. Although defendant pleaded guilty to a probation violation, as opposed to a crime, “where a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion” … . People v Bell, 2023 NY Slip Op 00594, Fourth Dept 2-3-23

Practice Point: Here the judge did not inform the defendant of postrelease supervision before he admitted to a probation violation. The admission was reversed on appeal despite the absence of a motion to withdraw the admission.

 

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BASED ON THE PEOPLE’S THEORY, THE JURY SHOULD NOT HAVE BEEN INSTRUCTED POSSESSION OF A WEAPON IS PRESUMPTIVE EVIDENCE OF AN INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER; DEFENDANT’S REQUEST TO CALL A WITNESS SHOULD NOT HAVE BEEN DENIED; DEFENDANT’S REQUEST FOR $1000 TO HIRE A PSYCHIATRIC EXPERT SHOULD NOT HAVE BEEN DENIED; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction, determined the judge (1) should not have instructed the jury that possession of a weapon is presumptive evidence of an intent to use it unlawfully against another (2) should not have prevented defendant from calling as a witness a nurse practitioner who treated him at a psychiatric facility and (3) should have granted defendant’s request pursuant to the County Law for $1000 to hire a psychiatric expert:

County Court erred in charging the jury with respect to the presumption set forth in Penal Law § 265.15 (4) concerning the possession of weapons, i.e., that the possession by any person of any weapon is presumptive evidence of intent to use the same unlawfully against another. Pursuant to the statute, that presumption applies only where the defendant possesses the weapon in question (see Penal Law § 265.15 [4] …). Here, the People did not proceed on any theory that defendant had possession of the weapon at issue. … .

… [T]he court abused its discretion by precluding defendant from calling a proposed witness at trial, namely, a nurse practitioner who treated him at the Mohawk Valley Psychiatric Center prior to the incident, on the grounds that her testimony was not relevant and that defendant failed to give timely notice under CPL 250.10 (1) (c). It is well settled that “[a criminal] defendant has a fundamental right to call witnesses in his [or her] own behalf” … . Here, defendant established that the proposed witness would have provided relevant testimony with respect to his defense and also established good cause for the delay in the notice, and the People failed to establish any prejudice … .

“Pursuant to County Law § 722-c, upon a finding of necessity, a court shall authorize expert services on behalf of a defendant, and only in extraordinary circumstances may a court provide for compensation in excess of $1,000 per expert” … . Here, we conclude that the court abused its discretion by denying defendant’s application on the sole ground that defendant had a retained attorney … . People v Osman, 2023 NY Slip Op 00581, Fourth Dept 2-3-23

Practice Point: Based on the People’s theory the jury should not have been instructed that possession of weapon is presumptive evidence of an intent to use it unlawfully against another. The defendant’s request to call a witness who could offer relevant evidence should not have been denied where the delay in notification was explained and there was no prejudice. The defendant’s request pursuant to the County Law for $1000 to hire a psychiatric expert should have been granted.

 

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THE LACK-OF-STANDING DEFENSE WAS NOT RAISED IN THE ANSWER OR THE PREANSWER MOTION TO DISMISS; IT IS NOT A JURISDICTIONAL DEFECT; THEREFORE THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ACTION ON THAT GROUND (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed petitioners’ declaratory judgment action against the town for lack of standing. The petitioners sought a ruling that the town had failed to enforce a zoning code provision which prohibited respondent-defendant from operating a commercial business out of his residence. Although the town moved to dismiss the action, it did not raise lack-of-standing in its answer or its motion. Therefore the judge did not have the authority to dismiss on that ground:

“Standing ‘is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation’ ” … . Nonetheless, “a party’s lack of standing does not constitute a jurisdictional defect” … , and therefore a challenge to a party’s standing is waived if the defense is not asserted in either the answer or a preanswer motion to dismiss … . Here, the Town’s motion with respect to the second cause of action was not based on petitioners’ alleged lack of standing. Thus, we conclude that the court erred in sua sponte reaching the issue of standing with respect to that cause of action … . Matter of Cayuga Nation v Town of Seneca Falls, 2023 NY Slip Op 00575. Fourth Dept 2-3-23

Practice Point: A lack-of-standing is not a jurisdictional defect. Therefore, if it is not raised in the answer or a preanswer motion to dismiss, it is waived and the judge cannot raise it sua sponte.

 

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ALTHOUGH FAMILY COURT CAN DIRECT MOTHER TO ENGAGE IN COUNSELING, SUBMIT TO DRUG TESTS AND TAKE MEDICATION, FAMILY COURT CAN NOT MAKE THE DIRECTIVES A PREREQUISITE FOR VISITATION (FOURTH DEPT).

The Fourth Department determined Family Court did not have the authority to make mother’s compliance with drug-test, medication and counseling directives a prerequisite for visitation:

… [T]he court erred in requiring the mother to participate in counseling, take her medications as prescribed, and provide proof of a negative hair follicle test prior to having therapeutic visitation with the children. Although the court may include such directives as a component of visitation, it does not have the authority to make them a prerequisite to visitation … . We therefore modify the orders accordingly, and we remit the matters to Family Court to fashion schedules for the mother’s therapeutic visitation with each child. Matter of Sharlow v Hughes, 2023 NY Slip Op 00518, Fourth Dept 2-3-23

Practice Point: Family Court can direct mother to submit to drug tests, engage in counseling and take medication but it cannot make the directives a prerequisite for visitation.

 

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A PRESENTENCE REPORT MUST BE CREATED FOR EACH OFFENSE; HERE THE JUDGE USED A PRESENTENCE REPORT PREPARED FOR A DIFFERENT UNRELATED OFFENSE; THE SENTENCE WAS ILLEGALLY IMPOSED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the sentencing court should not have used a presentence report created for an earlier, unrelated offense. A unique presentence report for each offense is mandatory:

CPL 390.20 provides that “[i]n any case where a person is convicted of a felony, the court must order a pre-sentence investigation of the defendant and it may not pronounce sentence until it has received a written report of such investigation” (CPL 390.20[1]). This statutory language is mandatory … and a sentencing court’s failure to obtain a presentence report renders the sentence imposed invalid as a matter of law … .

Here, the County Court sentenced the defendant on the murder conviction without ordering or receiving a presentence report relating to the murder conviction. Instead, the court relied on a presentence report prepared in connection with the defendant’s conviction of attempted criminal possession of a controlled substance in the third degree, the facts and circumstances of which were not related to the facts and circumstances of the murder conviction. … [T]his did not satisfy the requirements of CPL 390.20, and therefore the sentence was illegally imposed. People v Shearer, 2023 NY Slip Op 00445, Second Dept 2-1-23

Practice Point: A judge cannot use a presentence report prepared for one offense in a sentencing for a different, unrelated offense.

 

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FAMILY COURT SHOULD NOT HAVE PROCEEDED WITH THE CUSTODY HEARING WITHOUT A SEARCHING INQUIRY INTO WHETHER RESPONDENT FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the judge in this custody proceeding should not have proceeded without a searching inquiry into whether father was making an intelligent waiver of his right to counsel:

At an appearance before the Family Court on the mother’s petition, the court advised the father of his right to counsel, and the father requested an adjournment to obtain an attorney. The court stated that it would email the father contact information for Legal Aid and scheduled a date for a virtual hearing on the petition. On the scheduled hearing date, the father appeared without counsel and the court did not inquire whether the father was waiving his right to counsel. The court commenced the hearing with the father proceeding pro se. By order … , the court, after the hearing, among other things, awarded the mother primary physical custody of the child, with parental access to the father. The father appeals.

The father, as a respondent in a proceeding pursuant to Family Court Act article 6, had the right to be represented by counsel … . “A party may waive that right and proceed without counsel provided he or she makes a knowing, voluntary, and intelligent waiver of the right to counsel” … . “[T]o determine whether a party has validly waived the right to counsel, a court must conduct a searching inquiry to ensure that the waiver has been made knowingly, voluntarily, and intelligently” … .

Here, the Family Court failed to conduct a searching inquiry to ensure that the father’s waiver of his right to counsel was knowingly, voluntarily, and intelligently made … . Matter of Mercado v Arzola, 2023 NY Slip Op 00321, Second Dept 1-25-23

Practice Point: Here father, the respondent in a custody proceeding, had a right to counsel. The judge should not have proceeded with the hearing without making a searching inquiry into whether father was knowingly, intelligently and voluntarily waiving his right to counsel.

 

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THE INDICTMENT CHARGED DEFENDANT WITH POSSESSION OF A WEAPON OUTSIDE HIS HOME OR BUSINESS; THE JUDGE INSTRUCTED THE JURY THEY NEED ONLY FIND DEFENDANT POSSESSED A LOADED FIREARM; THE POSSESSION OF A WEAPON CONVICTION WAS REVERSED (SECOND DEPT).

The Second Department, reversing the possession-of-a-weapon conviction, determined the People were required to prove what was alleged in the indictment and the bill of particulars, i.e., that defendant possessed the weapon outside his home or business. The judge charged the jury they need only find defendant has knowingly possessed any firearm:

… [T]he defendant was charged in count 1 of the indictment with criminal possession of a weapon in the second degree under the theory that, on the date in question, he knowingly possessed a loaded firearm and that such possession was not in his home or place of business (see Penal Law § 265.03[3]). * * *

“Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories” … . Under the circumstances of this case, the People were required to prove at trial as an element of criminal possession of a weapon in the second degree that the possession of the loaded firearm was not in the defendant’s home or place of business (see Penal Law § 265.03[3] …). As the defendant correctly contends, the Supreme Court’s instruction impermissibly removed from the jury’s consideration an element of the crime of criminal possession of a weapon in the second degree as charged in count 1 of the indictment … . People v Reid, 2023 NY Slip Op 00336, Second Dept 1-25-23

Practice Point: The People are constrained to prove what is charged in the indictment and alleged in the bill of particulars. If the judge instructs the jury otherwise, the conviction will be reversed. Here the judge determined defendant had a prior conviction and his possession of a weapon, no matter where, would support a conviction. Therefore, the judge reasoned, the jury need not be instructed that the possession must be outside defendant’s home or business as charged in the indictment. The conviction was reversed.

 

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