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DEFENDANT SHOULD NOT HAVE BEEN RESENTENCED ON THE ORIGINAL CHARGE PURSUANT TO CPL 420.10 FOR FAILURE TO PAY RESTITUTION; THE JUDGE DID NOT MAKE THE STATUTORILY REQUIRED FINDINGS FOR RESENTENCING UNDER THAT STATUTE; RESENTENCE VACATED (THIRD DEPT).

The Third Department, reversing County Court, vacated defendant’s resentence. Once a defendant is sentenced, the court no longer has jurisdiction over the matter. Here, after it was determined defendant had willfully failed to pay the ordered restitution, defendant was resentenced to prison on the original conviction. By statute a defendant may be resentenced for failure pay restitution, but only after the court makes a finding the defendant is unable to pay due to indigency. No such finding was made here:

CPL 420.10 (3) provides that, when a court imposes restitution as part of a defendant’s sentence, the court can imprison the defendant if he or she fails to pay restitution; such provision authorizing imprisonment for failure to pay restitution can be set forth at the time of sentencing or may be added “at any later date while the . . . restitution . . . or any part thereof remains unpaid” (CPL 420.10 [3]). Although County Court therefore retained jurisdiction under the auspices of this statute, it erred in resentencing defendant pursuant to CPL 420.10 (5). As relevant here, CPL 420.10 (5) provides that, “[i]n any case where the defendant is unable to pay a fine, restitution or reparation imposed by the court, he [or she] may at any time apply to the court for resentence.” Resentencing is authorized “if the court is satisfied that the defendant is unable to pay the fine, restitution or reparation” (CPL 420.10 [5]). Here, there was no finding by the court that defendant was unable to pay the restitution due to indigency … . … [W]e refuse to equate defendant’s acceptance of the global agreement [agreeing to 81/2 to 25 years in prison including time served] with the application necessary to resentence him under CPL 420.10 (5) … . County Court could have sentenced defendant to a year in prison for his failure to pay under CPL 420.10 (3) and (4), but it did not. As it erred in utilizing CPL 420.10 (5), the resentence must be vacated. People v Marone, 2022 NY Slip Op 01070, Third Dept 2-17-22

 

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THE 3RD DEPARTMENT, JOINING THE 2ND, HOLDS THAT A DEFENDANT HAS A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT A SORA RISK-LEVEL PROCEEDING, DESPITE ITS CIVIL NATURE; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE; THE JUDGE DID NOT MAKE THE REQUIRED FINDINGS OF FACT AND CONCLUSIONS OF LAW (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Garry, determined: (1) defendant was entitled to and did not receive effective assistance of counsel at the SORA risk-level proceeding (which is civil in nature). despite his decision not to appear; and (2) the SORA judge did not make the required findings of fact and conclusions of law, requiring remittal:

Despite SORA proceedings being civil in nature, not criminal … , we now join the Second Department in explicitly holding that SORA defendants have the right to the effective assistance of counsel, pursuant to the Due Process Clauses contained in the 14th Amendment of the US Constitution and article I, § 6 of the NY Constitution, because the statutory right to counsel in such proceedings (see Correction Law § 168-n [3]) would otherwise be rendered meaningless, and because SORA determinations affect a defendant’s liberty interest … .

… Although defendant waived his right to be present at the SORA hearing, he did not waive his right to contest the Board’s risk level recommendation or the People’s arguments and proof … . Counsel — who acknowledged at the hearing that he had “had no contact” with defendant — made no arguments, essentially agreed to the Board’s recommendation, and failed to require the People to admit any proof at the hearing or County Court to provide any reasoning for its determination. … The record … reveals that counsel, who did not communicate with his client at all and “failed to litigate any aspect of the adjudication,” did not provide effective representation … . As defendant was deprived of the effective assistance of counsel, upon remittal he is entitled to a new hearing with different assigned counsel. People v VonRapacki, 2022 NY Slip Op 01071, Third Dept 2-17-22

 

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COUNTY COURT DID NOT MAKE THE REQUIRED FINDINGS OF FACT FOR DEFENDANT’S REQUEST FOR A DOWNWARD DEPARTURE IN THIS SORA RISK LEVEL PROCEEDING; ORDER REVERSED AND MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court failed to make the required findings of fact for defendant’s request for a downward departure:

Defendant … argues that County Court erred in denying his request for a downward departure. Although the court did expressly deny this request in the order, it did not detail the factual findings in support of its conclusion. Thus, we are unable to ascertain the court’s reasoning for denying defendant’s request. Consequently, we reverse and remit for County Court to set forth its findings of fact for denying [*2]defendant’s request for a downward departure as required … . People v Harvey, 2022 NY Slip Op 01073, Third Dept 2-17-22

 

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CERTAIN CHILD CUSTODY RECORDS AND CHILD PROTECTIVE SERVICES RECORDS (WHICH DO NOT RELATE TO AN INVESTIGATION) MAY BE DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION BROUGH ON BEHALF OF AN INFANT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined certain child custody records and Child Protective Services (CPS) records were or may be discoverable in this negligence and medical malpractice case brought on behalf of an infant. The custody records were relevant to plaintiff’s standing to sue and to family dynamics which may have affected the child’s health, and there may be some CPS records which are discoverable because they do not relate to an investigation, Therefore the matter was remitted for an in camera review:

Supreme Court did not address the second basis upon which defendants sought disclosure of the custody records, however, which was that they may contain information on family dynamics that impacted the infant’s development and would therefore be relevant as to plaintiff’s allegations, in her bill of particulars, that the infant’s learning disabilities and intellectual and emotional deficits arose out of defendants’ conduct. …

… [D]efendants are not entitled to disclosure of records relating to either a report of abuse or an investigation into one … . …

… [C]hild protective officials and related child welfare organizations may well possess discoverable documents that were not generated in the course of a child protective investigation but do contain information relevant to assessing whether the infant’s claimed injuries were linked to defendants’ actions or some other cause. C.T. v Brant, 2022 NY Slip Op 01090, Third Dept 2-17-22

 

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DEFENDANT MADE GOOD FAITH EFFORTS TO COMPLY WITH THE TERMS OF HER PLEA AGREEMENT; SENTENCE REDUCED AND CONVICTION MODIFIED IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reducing defendant’s sentence and modifying her conviction in the interest of justice, determined defendant had made good faith efforts to complete the anger-management program that was part of her plea agreement:

… [D]efendant entered into a plea agreement whereby she would plead guilty to second-degree assault, third-degree assault and endangering the welfare of a child, and the case would be adjourned for one year to allow her to complete a 12-week anger management program. If defendant completed the program, complied with an order of protection and had no new arrests, the People would allow her to withdraw her guilty plea to second-degree assault, and she would be sentenced to conditional discharges on the two misdemeanor convictions. Despite defendant’s diligent, repeated efforts to complete an anger management program, legitimate issues such as her inability to arrange childcare for her two young children after her 75-year-old grandmother, who had been caring for the children while defendant attended the sessions, broke her hip, prevented her from attending all the sessions. She enrolled in the program three times, each time beginning from the start, but could not complete the 12 weeks. At the time of sentencing, she had found, enrolled in and almost completed a different program close to her home with a schedule that allowed her to work and pick up her children after school. Although she did not complete the anger management program, defendant satisfied the remaining terms of the plea agreement. Under these circumstances, in the interests of justice we accordingly reduce the conviction and modify the sentence … . People v Perez, 2022 NY Slip Op 01104, Second Dept 2-17-22

 

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THE TRIAL JUDGE DID NOT MEANINGFULLY RESPOND TO A NOTE FROM THE JURY; RE-READING THE ORIGINAL INSTRUCTIONS WAS NOT SUFFICIENT; CONVICTION REVERSED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department reversed the judgment of conviction and ordered a new trial because the trial judge did not meaningfully respond to a note from the jury. Under the facts here, re-reading the original instructions was not sufficient:

… [W]hen the jury was deliberating, the County Court failed to meaningfully respond to one of the jury’s notes. “Pursuant to CPL 310.30, the trial court has an obligation to meaningfully respond to all questions from the jury during deliberations” … . “Although simply rereading the original instructions may, under the appropriate circumstances, constitute a meaningful response” … , here, it was error for the court to respond to the jury’s last question about the elements of one of the charges by simply rereading its original instructions. The jury had previously sent a note about that charge demonstrating its initial confusion about that instruction … . The record reflects that defense counsel and the court perceived that, with respect to the jury note at issue, the jury may have been asking whether the defendant was required to know of the falsity of the information in the document that was alleged to contain false information at the time she submitted it to the Department of Health investigator. Notwithstanding its perception about the jury’s inquiry, the court did not seek any further clarification from the jury about that note. Under these circumstances, at a minimum, the court should have asked the jurors to again clarify their request … . People v Manzano, 2022 NY Slip Op 01040, Second Dept 2-16-22

 

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SUPREME COURT, IN THE CONTEXT OF A MOTION TO DISMISS, SHOULD NOT HAVE DETERMINED AS A MATTER OF LAW THAT THE DEFENDANTS WERE NOT “AFFILIATES” WITHIN THE MEANING OF THE LANGUAGE OF A RELEASE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined Supreme Courts should have simply denied the motion to dismiss instead of deciding what parties were included in the term “affiliates” in the release at issue:

Supreme Court erred in finding, as a matter of law, that the word “affiliates” in the release entered into between plaintiffs and Siddiqui could not be read to include defendants Cernich and Huan Tseng … . The word “affiliates” may apply to individuals, and is “not commonly understood to apply only to entities” … . Furthermore, the arbitrator’s conclusion, in an earlier arbitration against different parties, that the release did not apply to nonparty Ming Dang does not serve as a conclusive basis for finding that the release did not apply to defendants. Accordingly, the scope of the release language with respect to Cernich and Tseng was ambiguous, and Supreme Court should have simply denied the motion to dismiss without determining the meaning of the release language as a matter of law. Apollo Mgt., Inc. v Cernich, 2022 NY Slip Op 00964, First Dept 2-15-22​

 

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DEFENDANT’S STATEMENT “I WOULD LOVE TO GO PRO SE” WAS NOT A DEFINITIVE REQUEST TO REPRESENT HIMSELF AND THEREFORE THE STATEMENT DID NOT TRIGGER THE NEED FOR A SEARCHING INQUIRY BY THE JUDGE (CT APP).

The Court of Appeals, in a brief memorandum decision over an extensive two-judge dissent, determined defendant’s statement “I would love to go pro se” was not a definitive commitment to self-representation and therefore did not trigger an inquiry by the judge:

… [D]efendant did not clearly and unequivocally request to proceed pro se. During a colloquy with the trial court, defendant referenced the unsuccessful application to relieve his assigned counsel made at his prior appearance, and he renewed that application, claiming that counsel was “ineffective.” The court denied the application and rejected defendant’s renewed attempt to read aloud from what defendant had previously referred to as “my testimony.” Upon review of the record as a whole, defendant’s retort, “I would love to go pro se,” immediately after the court’s denial of his applications “d[id] not reflect a definitive commitment to self-representation” that would trigger a searching inquiry by the trial court … . People v Duarte, 2022 NY Slip Op 00960, Ct App 2-15-22

 

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FAMILY COURT SHOULD HAVE HELD A HEARING ON PLAINTIFF’S MOTION TO HOLD DEFENDANT IN CIVIL CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT AND DEFENDANT’S PETITION TO REDUCE THE CHILD SUPPORT PAYMENTS; FAMILY COURT HAD GRANTED DEFENDANT’S PETITION AND DENIED PLAINTIFF’S MOTION WITHOUT HOLDING A HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined a hearing was necessary on plaintiff’s motion to hold defendant in civil contempt for failure to pay child support and on defendant’s petition to reduce his child support payments:

… [T]he parties’ submissions presented issues of fact with regard to the defendant’s actual income … , which the Supreme Court failed to ascertain … and whether or not he was and is able to comply with his child support obligation under the judgment of divorce … . Under such circumstances, the court erred in granting the defendant’s petition to modify the child support provisions of the judgment of divorce to the extent of directing him to pay $25 per month in child support retroactive to July 10, 2018, and in denying that branch of the plaintiff’s motion which was to adjudge the defendant in civil contempt for failure to pay child support without conducting a hearing … . Zeidman v Zeidman, 2022 NY Slip Op 00906, Second Dept 2-9-22

 

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FATHER’S PETITION FOR A MODIFICATION OF CUSTODY, REQUESTING AN AWARD OF SOLE CUSTODY, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, over a dissent, in a decision too comprehensive to fairly summarize here, determined father’s petition for a modification of custody (awarding him sole custody) should not have been granted:

… Family Court’s determination that there was a change of circumstances since the issuance of the prior custody order such that an award of sole legal and physical custody to the father was required to protect the best interests of the child lacks a sound and substantial basis in the record … . * * *

… Family Court also placed undue weight on an alleged suicide attempt by the mother in 2013, which predated the award of sole legal and residential custody to the mother in 2018 by several years, and thus, could not constitute a “change of circumstances since the [prior] custody determination” … . …

… Family Court failed to afford sufficient weight to conduct by the father which militated against awarding him sole custody. In particular, the mother testified that the father did not allow her to speak to the child by phone, Facetime, or other means while the child was at the father’s home. …

… Family Court failed to afford sufficient weight to conduct by the father which militated against awarding him sole custody. In particular, the mother testified that the father did not allow her to speak to the child by phone, Facetime, or other means while the child was at the father’s home. Matter of Paige v Paige, 2022 NY Slip Op 00866, Second Dept 2-9-22

 

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