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HERE THE DEFENDANT DID NOT COMPLETE THE TREATMENT REQUIRED BY THE PLEA AGREEMENT; THE GUILTY PLEA WAS THEREFORE INDUCED BY AN UNFULFILLED PROMISE WHICH USUALLY REQUIRES THAT THE PLEA BE VACATED; HERE SUPREME COURT FELT DEFENDANT SHOULD NOT HAVE BEEN TERMINATED BY THE TREATMENT PROGRAM AND PROPERLY EXERCISED DISCRETION IN FASHIONING A SENTENCE MUCH LESS THAN THAT REQUIRED BY THE PLEA AGREEMENT, LEAVING THE GUILTY PLEA IN PLACE (SECOND DEPT).

The Second Department determined Supreme Court properly exercised discretion in the face of defendant’s failure to complete treatment as required by the plea agreement. The court found that, although defendant had relapsed during the treatment for alcoholism, the relapse did not justify his being terminated by the program. Therefore the court did not vacate defendant’s guilty plea (on the ground it was induced by an unfulfilled promise) and fashioned a drastically reduced sentence (time served):

“[I]n most instances when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored, but that the choice rests in the discretion of the sentencing court” … . In this case, the Supreme Court providently exercised its discretion in determining that, although the defendant spent more than a year in residential substance abuse treatment programs, specific performance of the conditional plea agreement was not warranted. Although the court did not believe that the defendant’s alcohol relapse and other reported problems at the final treatment program he attended were the real reason for his discharge, those issues nevertheless suggested that the defendant’s alcoholism, which played a role in his commission of the instant offenses, remained an unresolved concern.

Moreover, the manner in which this case was ultimately resolved essentially split the difference between what was promised if the defendant was successful in treatment, and the sentence the Supreme Court could have imposed if he was not. Although the defendant’s conviction of sexual abuse in the first degree was not vacated, he was effectively sentenced to time served, instead of four years in prison. In addition, the alternative sentence that was contemplated at the time of the defendant’s pleas of guilty included seven years of postrelease supervision. Because the court sentenced the defendant to definite terms of imprisonment, however, he avoided being subject to postrelease supervision … . People v Boissard, 2022 NY Slip Op 05042, Second Dept 8-24-22

Practice Point: Usually a guilty plea induced by a plea agreement that was not fulfilled will be vacated. Here the defendant did not wish to withdraw his guilty plea and the court properly exercised discretion in fashioning a sentence much more lenient than that required by the plea agreement. The judge took into account the defendant’s attempts to comply with the treatment required by the plea agreement, and expressed the opinion defendant should not have been terminated by the program.

 

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PLAINTIFF BANK’S FAILURE TO COMPLY WITH A STATUS-CONFERENCE SCHEDULING ORDER IN THIS FORECLOSURE ACTION WAS NOT A SUFFICIENT GROUND FOR THE “SUA SPONTE” DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint in this foreclosure action based upon plaintiff’s failure to file a motion for judgment of foreclosure by a specified date:

… [A] status conference order was entered … which … directed the plaintiff to file a motion for a judgment of foreclosure and sale by December 20, 2017, and warned that “failure to comply with the terms of this order may result in the dismissal of this action without prejudice.” The plaintiff failed to file a motion for a judgment of foreclosure and sale as directed by the status conference order. … [T]he Supreme Court, … sua sponte, directed dismissal of the complaint without prejudice. …

“‘A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'”… . Here, the plaintiff’s failure to comply with the directive of the status conference order was not a sufficient ground upon which to direct dismissal of the action … . U.S. Bank N.A. v Stuart, 2022 NY Slip Op 05055, Second Dept 8-24-22

Practice Point: Generally, appellate courts will reverse a “sua sponte” dismissal of a complaint.

 

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THE BANK DID NOT PROVE COMPLIANCE WITH THE RPAPL 1304 NOTICE-OF-FORECLOSURE MAILING REQUIREMENTS; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff bank in this foreclosure action did not prove compliance with the mailing requirements for mailing the RPAPL 1304 notice and the judge should not have, sua sponte, dismissed the complaint:

… [P]laintiff failed to submit sufficient evidence to demonstrate that the required RPAPL 1304 notice was sent by first-class mail. In an affidavit in support of its motion, Joanna M. Gloria, the plaintiff’s vice president of loan documentation, neither attested that she had personal knowledge of the mailing, nor did she present proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed. “‘[T]he mere assertion that the notice was mailed, supported by someone with no personal knowledge of the mailing, in the absence of proof of office practices to ensure that the item was properly mailed, does not give rise to the presumption of receipt'” … . …

… [T]he Supreme Court erred in, sua sponte, directing dismissal of the complaint. “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . No extraordinary circumstances were present in this case, as the “failure to comply with RPAPL 1304 is not jurisdictional” … , the defendant did not present any proof as to the plaintiff’s failure to comply with RPAPL 1304, and did not cross-move for summary judgment dismissing the complaint insofar as asserted against him. Wells Fargo Bank, N.A. v Cascarano, 2022 NY Slip Op 04998, Second Dept 8-17-22

Practice Point: The bank did not prove the notice of foreclosure was properly mailed, requiring denial of the bank’s motion for summary judgment. But the judge should not have, sua sponte, dismissed the foreclosure complaint.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR A ONE-DAY ADJOURNMENT TO ALLOW HIS DAUGHTER TO TRAVEL TO COURT TO TESTIFY, COUPLED WITH THE RELATED GRANT OF THE PEOPLE’S REQUEST FOR A MISSING-WITNESS JURY INSTRUCTION, DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction in the interest of justice, determined the judge’s denial of defendant’s request for a one-day adjournment to allow defendant’s daughter to travel to court to testimony, and the grant of the People’s related request for a missing witness jury instruction, deprived defendant of a fair trial:

“[W]hen the witness is identified to the court, and is to be found within the jurisdiction, a request for a short adjournment after a showing of some diligence and good faith should not be denied merely because of possible inconvenience to the court or others” … . Under the circumstances here, the Supreme Court should have granted a one-day continuance for the defendant’s daughter to travel to New York from out of state … . The failure to grant this continuance cannot be considered harmless error, as there was conflicting testimony as to the defendant’s whereabouts at the time of the robbery … . …

Although the defendant’s contention that the Supreme Court improvidently exercised its discretion in granting the prosecution’s request for a missing witness charge is unpreserved for appellate review … , this issue is inextricably linked with the denial of the defendant’s request for a continuance, and this Court will consider the issue in the exercise of our interest of justice jurisdiction … .  “The failure to produce a witness at trial, standing alone, is insufficient to justify a missing witness charge, ‘[r]ather, it must be shown that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him [or her], and that the witness is available to such party'” … . People v Reeves, 2022 NY Slip Op 04979, Second Dept 8-17-22

Practice Point: The request for a one-day adjournment to allow defendant’s daughter to travel to court to give ostensibly relevant testimony (re: defendant’s whereabouts at the time of the robbery), coupled with the grant of the People’s request to give the missing-witness jury instruction, deprived defendant of a fair trial. The jury-instruction issue was not preserved and was considered in the interest of justice.

 

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A JURY NOTE WHICH REQUIRES NO ACTION BY THE COURT NEED NOT BE SHARED WITH DEFENSE COUNSEL (SECOND DEPT).

The Second Department determined there was no need for the judge to notify defense counsel of a jury note which did not require any action by the court, Also, jury notes requesting exhibits did not need to be shared with counsel because counsel agreed at the outset of deliberations that the jury could request exhibits:

In the defendant’s view, the Supreme Court’s failure to read note 6 into the record constituted a mode of proceedings error. We disagree.

Note 6 did not request “further instruction or information with respect to the law, [or] with respect to the content or substance of any trial evidence” (CPL 310.30). Nor did it indicate that the jury was deadlocked or struggling to reach a verdict on any or all of the counts submitted to it, or otherwise apprise the court of a significant development in the deliberations … . All the note conveyed was that the jury was continuing to deliberate on all of the charges, and that they were nearing a verdict on the first count in the defendant’s case, as well as the two counts in the codefendant’s case. Plainly, then, there was no action for the Supreme Court to take, and, concomitantly, no input or participation from defense counsel was necessary to ensure that the defendant’s rights were “adequately protect[ed]” … . Note 6 was, in short, not a substantive communication from the jury. People v Edwards, 2022 NY Slip Op 04818, Second Dept 8-3-22

Practice Point: A jury note which does not require action by the judge need not be shared with defense counsel. Here the note informed the judge that they were near a verdict on certain counts.

 

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THE PRINCIPAL WITNESS AGAINST DEFENDANT IN THIS FIRST DEGREE MURDER (MURDER-FOR-HIRE) TRIAL WAS AN ACCOMPLICE AS A MATTER OF LAW; IT WAS REVERSIBLE ERROR TO FAIL TO SO INSTRUCT THE JURY; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED IN THE INTEREST OF JUSTICE; THE DEFENDANT’S ALLEGED SILENCE IN RESPONSE TO AN ACCUSATION (ADOPTIVE ADMISSION) WAS INADMISSIBLE BECAUSE THE PEOPLE DID NOT PROVE DEFENDANT HEARD THE ACCUSATION (SECOND DEPT). ​

The Second Department, reversing defendant’s murder-first-degree conviction and ordering a new trial, determined the jury should have been instructed that the defendant’s paramour, Lovell, who was involved the plot to have the victim killed by a third-party, and who testified against the defendant at trial, was an accomplice as a matter of law. Despite defense counsel’s failure to preserve the error, the issue was considered on appeal in the interest of justice. The Second Department also held that the “adoptive admission” by the defendant should not have been admitted in evidence. It was alleged the defendant remained silent when her mother-in-law accused her of killing the victim. The People did not prove defendant actually heard the accusation:

Supreme Court failed to instruct the jury that Lovell was an accomplice and subject to the statutory corroboration requirement. Although the court was “under a duty to charge . . . even without a request from the defendant … , the rule of preservation requires that defense counsel object to the court’s failure in order to preserve a question of law for appellate review … . Notwithstanding defense counsel’s failure to object at trial, under the circumstances of this case, we reach the unpreserved error in the interest of justice and find that the failure to properly instruct the jury constituted reversible error … …. [T]he evidence of the defendant’s guilt, which consisted principally of Lovell’s testimony, was not overwhelming … . * * *

“To use a defendant’s silence or evasive response as evidence against the defendant, the People must demonstrate that the defendant heard and understood the assertion, and reasonably would have been expected to deny it” … . Here, the People failed to establish that the defendant actually heard the mother-in-law’s accusations or that the defendant had an opportunity to respond to the accusations prior to the mother-in-law disconnecting the phone call. Therefore, the court should not have admitted the evidence. People v Noel, 2022 NY Slip Op 04647, Second Dept 7-20-22

Practice Point: The testimony of defendant’s paramour, who was involved in the murder-for-hire, was the principal evidence against the defendant. The failure to instruct the jury that the paramour was an accomplice as a matter of law whose testimony must be corroborated was reversible error. Although the error was not preserved the Second Department considered it ion appeal in the interest of justice. The defendant’s silence in the face of an accusation (an adoptive admission) should not have been admitted in evidence because the People did not prove the defendant heard the accusation.

 

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MOTHER WAS EXPERIENCING COVID-LIKE SYMPTOMS AND THE COURT RULES PROHIBITED HER ENTRY; HER REQUEST FOR AN ADJOURMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the court abused its discretion in denying mother’s request for an adjournment:

… [T]he court abused its discretion in denying her attorney’s request for an adjournment. The mother had not previously requested an adjournment, and there was no indication in the record that an adjournment would have adversely affected the child … . Further, the mother was experiencing COVID-like symptoms and, under the court’s own rules, she was prohibited from entering the courthouse … . We therefore vacate those parts of the order determining that the mother permanently neglected the subject child and terminating her parental rights … . Matter of Jiryan S., 2022 NY Slip Op 04514. Fourth Dept 7-8-22

Practice Point: Here mother was experiencing COVID-like symptoms and requested an adjournment. Court rules prohibited her entry into the building. Her request for an adjournment should have been granted.

 

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THE JUDGE HAD BEEN MADE AWARE A WEEK BEFORE THE HEARING THAT MOTHER’S ATTORNEY WAS NO LONGER REPRESENTING HER; AT THE HEARING MOTHER EXPLAINED SHE HAD COMMUNICATED WITH ANOTHER LAWYER WHO COULD NOT ATTEND THAT DAY; MOTHER ASKED FOR AN ADJOURNMENT; THE JUDGE ABUSED HER DISCRETION IN DENYING THE REQUEST (FOURTH DEPT).

The Fourth Department, reversing Family Court in this custody proceeding, determined mother’s request for an adjournment should have been granted. Mother’s relationship with her attorney had broken down. The attorney had notified the judge a week before and the attorney did not appear for the hearing. At the hearing, mother told the judge she had communicated with another lawyer (who had other obligations) and asked for an adjournment. The request denied and mother represented herself:

Approximately one week prior to the hearing on the father’s petition, the mother’s attorney informed Family Court that there had been a breakdown in her attorney-client relationship with the mother, as a result of which she was no longer representing the mother, and she requested an adjournment of the hearing. On the morning of the hearing, the court failed to make any inquiry of the mother concerning the fact that her attorney was not present at the hearing, nor did the court make any mention of the attorney’s adjournment request. The mother herself then sought an adjournment and confirmed to the court that there had been a fundamental breakdown in the relationship with her attorney. The mother explained that she had spoken to, and scheduled a meeting with, a new attorney and that the new attorney could not be present due to a preexisting obligation. …

… [T]he court abused its discretion in denying her request to adjourn the hearing … . The record establishes that the mother’s request was not a delay tactic and did not result from her lack of diligence in retaining new counsel … . We therefore reverse the order and remit the matter to Family Court for a new hearing on the petition. Matter of Dupont v Armstrong, 2022 NY Slip Op 04509, Fourth Dept 7-8-22

Practice Point: Here mother had never requested an adjournment before and the judge was aware mother’s relationship with her attorney had broken down. At the time of the hearing mother told the judge she had communicated with another lawyer who could not attend that day and asked for an adjournment. The judge’s denial of the request was an abuse of discretion.

 

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ALTHOUGH THE ISSUES WERE NOT RAISED ON APPEAL, THE APPELLATE COURT VACATED THE SENTENCES EITHER BECAUSE THE CONCURRENT SENTENCES WERE ILLEGAL OR BECAUSE THE GUILTY PLEAS WERE INDUCED BY THE PROMISE OF ILLEGAL CONCURRENT SENTENCES (FOURTH DEPT).

The Fourth Department, raising issues not raised in the appeals, determined the concurrent sentences imposed by the judge had to be vacated because the judge did not put the reasons for the concurrent sentences on the record. All the sentences were vacated because the guilty pleas were induced by a promise of illegal concurrent sentences:

… [D]efendant committed the crimes to which he pleaded guilty in appeal Nos. 2 and 3 while released on recognizance for the charge to which he pleaded guilty in appeal No. 1, and defendant also committed the crime to which he pleaded guilty in appeal No. 2 while released on recognizance for the charge to which he pleaded guilty in appeal No. 3. Thus, in the absence of a statement of the facts and circumstances warranting concurrent sentences set forth on the record, the court was required to direct that the felony sentences run consecutively (see § 70.25 [2-b] …). …

A court may, in the interest of justice, impose a concurrent sentence for a conviction of assault in the second degree under Penal Law § 120.05 (7), provided that the court sets forth in the record its reasons for imposing a concurrent sentence (see Penal Law § 70.25 [5] [c] …) … [T]he court imposed a concurrent sentence without setting forth its reason on the record.

… [B]ecause defendant’s guilty pleas in appeal Nos. 1 through 5 were all induced by the promise of illegal concurrent sentencing, we must also vacate the sentence imposed in appeal No. 4, and in each of the five appeals we remit the matter to County Court to afford defendant the opportunity to either withdraw his guilty plea or be resentenced in compliance with Penal Law § 70.25 (2-b) and (5) … . People v Horton, 2022 NY Slip Op 04501, Fourth Dept 7-8-22

Practice Point: Sentences for crimes committed when defendant has been released on his own recognizance can not be concurrent unless the judge puts the relevant facts and reasoning on the record. The same goes for assault second. Here the reasons for the concurrent sentences were not put on the record, rendering the concurrent sentences illegal. Because all the guilty pleas were induced by the promise of concurrent sentences, all the sentences were vacated. The “illegal concurrent sentences” issue had not been brought up on appeal.

 

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HERE THE DEFENDANT, IN HIS MOTION TO VACATE HIS CONVICTION, RAISED ISSUES ABOUT THE EXTENT OF HIS COOPERATION AND WHETHER NEW DEFENSE COUNSEL ADEQUATELY INVESTIGATED THE PROSECUTOR’S WITHDRAWAL OF THE COOPERATION AGREEMENT; THE PEOPLE’S RESPONSE DID NOT ADDRESS THESE SUBSTANTIVE ISSUES; THEREFORE COUNTY COURT SHOULD HAVE HELD A HEARING (THIRD DEPT).

The Third Department, reversing County Court, determined defendant had raised several issues in the motion to vacate the conviction which were not addressed by the People’s response. Some of the issues were corroborated in an affidavit from defendant’s prior attorney. Therefore a hearing was necessary:

… [W]e agree with defendant that he is entitled to a hearing on whether counsel was ineffective in connection with defendant’s alleged failure to fully cooperate under the terms of the 2016 cooperation agreement. A hearing is required on a CPL article 440 motion “if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief” … . In that regard, defendant averred that he consistently gave a truthful account of the burglary and had fully cooperated in the prosecution of [a codefendant] as required by the 2016 cooperation agreement, and his motion papers included a September 2016 supporting deposition from his sister and an affidavit from [his former attorney] to support those claims. Defendant also alleged specific deficiencies in counsel’s performance, namely, that counsel failed to investigate whether the Special Prosecutor’s withdrawal of the 2016 cooperation agreement was impermissibly “premised on bad faith, invidiousness, . . . dishonesty” or unconstitutional considerations and, moreover, failed to discuss the possibility of demanding a hearing on that issue with defendant … . People v Buckley, 2022 NY Slip Op 04197, Third Dept 6-30-22

Practice Point: If a motion to vacate the conviction raises substantive issues which are corroborated in some way (here with an affidavit by defendant’s prior attorney), and these substantive issues are not adequately dealt with in the People’s responding papers, a hearing must be held.

 

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