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FAMILY COURT DOES NOT HAVE THE AUTHORITY TO DIRECT THE DEPARTMENT OF SOCIAL SERVICES (DSS) TO COMMENCE A NEGLECT PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court does not have the authority to direct the Department of Social Services (DSS) to commence a neglect proceeding:

Neither DSS nor the attorney for the child disputes the ability of DSS to commence a neglect proceeding without leave of a court. They also do not dispute that Family Court, under Family Ct Act § 1034, may order DSS to conduct a child protective investigation and report its findings to the court. What is disputed is whether Family Court may order a child protective agency, such as DSS, to commence a neglect proceeding against a parent. …

“Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute” … . The relevant statute provides that a proceeding under Family Ct Act article 10 may be “originate[d]” either by “a child protective agency” or “a person on the court’s direction” (Family Ct Act § 1032 [a], [b]). In view of the express terms of the statute, Family Court has the authority to direct the commencement of a Family Ct Act article 10 proceeding. That authority, however, is limited to directing only a “person” to do so … — which DSS is not. Matter of Donald QQ. v Stephanie RR., 2021 NY Slip Op 05760, Third Dept 10-21-21

 

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PURSUANT TO CPLR 3408 (B), WHEN DEFENDANTS IN THIS FORECLOSURE ACTION APPEARED WITHOUT COUNSEL AT THE SETTLEMENT CONFERENCE, SUPREME COURT SHOULD HAVE DETERMINED WHETHER THEY WERE ENTITLED TO ASSIGNED COUNSEL, MATTER REMITTED (THIRD DEPT).

The Third Department, remitting the matter for a finding whether defendants in this foreclosure action are eligible for assigned counsel, determined the judge did not comply with CPLR 3408 (b) at the settlement conference:

[CPLR 3408 (b)] provides that, at the initial foreclosure settlement conference, “any defendant currently appearing pro se[] shall be deemed to have made a motion to proceed as a poor person under [CPLR 1101]. The court shall determine whether such permission shall be granted pursuant to standards set forth in [CPLR 1101]” (CPLR 3408 [b]). Because defendants appeared at the June 2016 settlement conference without representation, each was “deemed to have made a motion to proceed as a poor person” and Supreme Court was required to determine such motion (CPLR 3408 [b]). Although Supreme Court erred in failing to adhere to its obligations under CPLR 3408 (b), the question remains whether defendants would have been eligible for the assignment of counsel based upon their financial circumstances. The record does not contain adequate information to render such a determination (see CPLR 1101 [a]). The eligibility for assigned counsel is a threshold issue that must be resolved before we can determine the merits of this appeal. As such, we withhold decision and remit the matter to Supreme Court to render a determination as to defendants’ eligibility for assigned counsel as of the June 2016 settlement conference … . Carrington Mtge. Servs., LLC v Fiore, 2021 NY Slip Op 05743, Third Dept 10-21-21

 

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SUPREME COURT ADDRESSED THE MERITS OF THE ACTION WITHOUT DISCOVERY AND TRIAL; THE COURT SHOULD ONLY HAVE DECIDED WHETHER PETITIONER WAS ENTITLED TO A PRELIMINARY INJUNCTION; MATTER REMITTED FOR PROCEEDINGS BEFORE A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, reversing Supreme Court and remitting the matter to a different judge, determined this breach-of-contract/preliminary-injunction/declaratory-judgment/Article-78 proceeding should not have been decided on the merits without discovery, the filing of a note of issue and a trial. The court should have decided only whether petitioner was entitled to a preliminary injunction. Petitioner is a contractor hired by respondents to install a water system for snow-making for ski trails. Respondents terminated the contract for cause and petitioner brought an action for a preliminary injunction (prohibiting respondents from awarding the contract to others without competitive bidding), a declaratory judgment, and breach of contract:

… Supreme Court should have confined … its determination to whether petitioner was entitled to a preliminary injunction. … Supreme Court prematurely resolved the merits of petitioner’s declaratory judgment cause of action and respondents’ counterclaims, without first affording the parties their rights to discovery and a jury trial on the claims/counterclaims raised in the plenary action (see CPLR 3103 [a]; 4101 …), and without a note of issue and certificate of readiness having been filed. Moreover, Supreme Court did not acknowledge or address petitioner’s third cause of action for breach of contract, even though the plenary action involves, at its heart, a contract dispute. Although petitioner also asserted a cause of action for a declaratory judgment, the award of declaratory relief hinges on the resolution of the contract dispute — that is, whether respondents wrongfully terminated the contract for cause under the terms of the contract. Matter of Murnane Bldg. Contrs., Inc. v New York State Olympic Regional Dev. Auth., 2021 NY Slip Op 05756, Third Dept 10-21-21

 

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THE TRIAL JUDGE DID NOT GIVE COUNSEL MEANINGFUL NOTICE OF A SUBSTANTIVE JURY NOTE; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, ordering a new trial, determined the trial judge did not give counsel meaningful notice of a substantive jury note:

Pursuant to CPL 310.30, when a trial court receives a substantive jury inquiry, the court has two separate duties: “the duty to notify counsel and the duty to respond”… . With regard to the former duty, the court must provide counsel “notice of the actual specific content of the jurors’ request” … . A “trial court’s failure to provide counsel with meaningful notice of a substantive jury note is a mode of proceedings error that requires reversal” … .

Here, although marked as a court exhibit, the trial transcript does not reflect that the Supreme Court showed or read verbatim to counsel a jury note, which stated: “We would like the DNA results in regards to the blood smear on the banister.” People v Carillo, 2021 NY Slip Op 05710, Second Dept 10-20-21

 

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DEFENDANT’S WAIVER OF APPEAL WAS UNENFORCEABLE; “DIFFICULTIES” BETWEEN DEFENDANT AND TWO ATTORNEYS ASSIGNED TO REPRESENT HIM DID NOT AMOUNT TO DEFENDANT’S FORFEITURE OF HIS RIGHT TO COUNSEL, AS THE TRIAL JUDGE HAD RULED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined defendant’s waiver of appeal was not valid and the trial judge had violated defendant’s right to counsel by essentially forcing defendant to represent himself after several attorneys had withdrawn. Of all the attorneys who had withdrawn, only two cited difficulties with the defendant. The cited “difficulties” were defendant’s “raised voice” and “lack of cooperation.” There were no allegations of threats or abusive conduct. The other attorneys had withdrawn citing a conflict of interest, illness and leaving the state:

… [D]efendant’s waiver in the case before us did not contain “clarifying language . . . that appellate review remained available for certain issues” … . Indeed, the written appeal waiver and the colloquy utterly failed to indicate that some rights to appeal would survive the waiver. Moreover, the written waiver implied that defendant was completely waiving his right “to prosecute [an] appeal as a poor person, and to have an attorney assigned” if indigent.

Defendant’s appeal waiver thus mischaracterized the nature of the waiver of appeal by suggesting that the waiver included an absolute bar to the taking of a first-tier direct appeal and the loss of attendant rights to counsel and poor person relief … . * * *

There may be circumstances where a defendant who refuses to cooperate with successive assigned attorneys is ultimately deemed to have forfeited the right to assigned counsel, although such an individual must be afforded the opportunity to retain counsel. … There is record evidence of only two attorneys who asked to be relieved due to difficulties with defendant. … County Court’s own orders relieving Miosek, Taylor, Carlson, and Scott cited conflict of interest, illness, or departure from the state, not attorney-client animosity. Such factors were beyond defendant’s control. People v Shanks, 2021 NY Slip Op 05450, CtApp 10-12-21

 

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DEFENDANT’S GUILTY PLEA WAS COERCED BY THE JUDGE’S THREAT TO IMPOSE A HEAVIER SENTENCE IF CONVICTED AFTER TRIAL; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant was induced to enter the plea by a threat to impose a heavier sentence after trial. The defendant did not preserve the issue for appeal by a motion to withdraw the plea or vacate the judgment, but the appeal was heard in the interest of justice:

… [D]efendant contends that his plea was rendered involuntary due to statements made by County Court during the plea colloquy indicating that the court would impose the maximum sentence and direct that it run consecutively to a previously imposed sentence if he were convicted at trial. * * *

… [I]t is well settled that a defendant “may not be induced to plead guilty by the threat of a heavier sentence” if he or she decides to proceed to trial … . … [T]he court’s comments about sentencing were not merely a description of the range of the potential sentences; instead, they conveyed to defendant the court’s intent to impose the maximum punishment at sentencing if he proceeded to trial and lost. That constitutes coercion, rendering the plea involuntary … . People v Thigpen-Williams, 2021 NY Slip Op 05429, Fourth Dept 10-8-21

 

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THE JUDGE SHOULD HAVE HELD A HEARING TO DETERMINE THE AMOUNT OF RESTITUTION, MATTER REMITTED (FOURTH DEPT).

The Fourth Department determined County Court should have held a hearing on the amount of restitution and remitted the matter:

Penal Law § 60.27 (2) provides in relevant part that, when a court requires restitution to be made, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” … . Here, contrary to the assertion of the People, defendant made a timely request for a restitution hearing inasmuch as he requested a hearing before the court made its determination on restitution. The court never ordered a specific amount of restitution at sentencing, and the People did not prepare the order of restitution setting forth the amount requested until the following week. Defendant raised issues with the amount and requested a hearing. Upon defendant’s request, the court was required to conduct a hearing “irrespective of the level of evidence in the record” to support the amount of restitution … . People v Osborn, 2021 NY Slip Op 05426, Fourth Deptp 10-8-21

 

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SUPREME COURT MUST RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL BEFORE THE APPELLATE COURT CAN CONSIDER THE ISSUE, MATTER REMITTED FOR A RULING; THE SENTENCE IN THIS DWI CASE WAS ILLEGAL (FOURTH DEPT).

The Fourth Department, remitting the case to Supreme Court, determined the trial court must rule on the motion for a trial order of dismissal before the appeal of that issue can be considered. The Fourth Department noted that the sentence imposed in this DWI case was illegal:

… [W]e may not address defendant’s contention because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998] … ), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a ruling on defendant’s motion … . …

… [W]e note … that the sentence is illegal insofar as the court directed that defendant serve a term of five years of probation, with an ignition interlock device for a period thereof, consecutive to the indeterminate term of imprisonment of 1 to 3 years on his conviction for violating Vehicle and Traffic Law § 1192 (4-a) … . People v Capitano, 2021 NY Slip Op 05225, Fourth Dept 10-1-21

 

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THE TRIAL JUDGE SHOULD NOT HAVE NEGOTIATED A PLEA DEAL WITH A CO-DEFENDANT REQUIRING TESTIMONY AGAINST THE DEFENDANT IN EXCHANGE FOR A MORE FAVORABLE SENTENCE; NEW TRIAL BEFORE A DIFFERENT JUDGE ORDERED (F0URTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge assumed the function of an interested party when he negotiated and entered into a plea agreement with a co-defendant requiring the co-defendant to testify against the defendant in exchange for a more favorable sentence:

… [T]he court committed reversible error when it “negotiated and entered into a [plea] agreement with a codefendant[,] requiring that individual to testify against defendant in exchange for a more favorable sentence” … . We conclude that, “by assuming the function of an interested party and deviating from its own role as a neutral arbiter, the trial court denied defendant his due process right to ‘[a] fair trial in a fair tribunal’ ” … . We therefore reverse the judgment and grant a new trial before a different justice … . People v Johnson, 2021 NY Slip Op 05217, Fourth Dept 10-1-21

 

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THE RECORD WAS NOT SUFFICIENT FOR THE APPEAL OF THE SORA RISK LEVEL CLASSIFICATION; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined the appeal of the Sex Offender Registration Act (SORA) risk level classification could not be heard because the record was not sufficient. The matter was remitted:

“Although the short form order utilized by County Court contains the ordered language required to constitute an appealable paper, the written order fails to set forth the findings of fact and conclusions of law required by Correction Law § 168-n (3)” … . “The hearing transcript is similarly deficient as it does not contain clear and detailed oral findings to support County Court’s risk level classification” … . The scant record before us is not sufficiently developed to enable this Court to make its own factual findings and legal conclusions — particularly with respect to the number of victims and the points assessed under risk factor three. Accordingly, County Court’s order is reversed, and this matter is remitted for further proceedings. People v Kwiatkowski, 2021 NY Slip Op 04934, Third Dept 9-2-21

 

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