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THE JUDGE SHOULD NOT HAVE DELEGATED THE AUTHORITY TO DETERMINE FATHER’S PARENTAL ACCESS TO THE PETITIONER, THE DECEASED MOTHER’S COUSIN, IN THIS GUARDIANSHIP CASE (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, noted that a judge cannot delegate the authority to determine father’s parental access, here the mother’s cousin petitioned to become the child’s guardian:

… “[A] court may not delegate its authority to determine parental access to either a parent or a child” … . In this case, the Family Court improperly delegated the determination of the father’s parental access to the petitioner. Accordingly, we remit the matter to the Family Court, Suffolk County, to expeditiously establish an appropriate schedule for the father’s parental access in accordance with the best interests of the child … . Matter of Madelyn E. P. (Christine L.-B.–Kevin O.), 2021 NY Slip Op 04228, Second Dept 7-7-21

 

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THE SENTENCING JUDGE’S REMARKS ABOUT THE DEFENDANT MIMICKED 19TH CENTURY POLYGENISM, A DEBUNKED RACIST IDEOLOGY; SENTENCE VACATED AND REDUCED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, in a full-fledged opinion by Justice Lynch, determined the judge’s racist remarks at the time of sentencing required vacation of the sentence, which the Third Department reduced from 15-years-to-life to five years:

The court, practically right out of the gate, stated, “[Defendant], I feel sorry for you. Because I know that if we were to look in your mind we would find that your brain, your frontal lobes, your decision making processes are probably retarded in growth.” The court then inexplicably and shockingly reiterated, “Because we have learned through medicine, through science, that physical mental abuse especially at a young age will stunt the growth of the frontal lobes which prevents people from making decisions.” The court finally reinforced its own beliefs when it stated, “[T]he sentence here is in a way to make you safe from hurting yourself or others, because I appreciate the fact that your brain is not developed, through no fault of your own.”

In fashioning an appropriate sentence, the trial court is required to weigh and consider societal protection, rehabilitation and deterrence, as well as the circumstances that gave rise to the conviction” … . Factors that have zero role in this process are the skin color of the defendant and racist views — a premise that should not have to be explicitly stated. The commentary focusing on defendant’s brain growth mimics 19th century polygenism, a racist ideology that focused on the claimed inferiority of black people based upon now debunked theories of reduced brain size … . It is shocking that any court, in 2018, would refer to this black defendant’s brain, frontal lobes and retardation of growth in concluding that defendant’s brain was not developed. Defendant is not a child or an adolescent, but was a 41-year-old grown black man at the time of sentencing. County Court’s statements are textbook language that has been used since the late 19th century and even today to justify racist ideologies and beliefs that black people are an inferior race. We find the court’s commentary dehumanizing and offensive.  People v Johnson, 2021 NY Slip Op 04162, Third Dept 7-1-21

 

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FAMILY COURT SHOULD NOT HAVE DELEGATED TO FATHER ITS AUTHORITY TO SUPERVISE MOTHER’S PARENTING TIME AND TELEPHONE AND ELECTRONIC CONTACT WITH THE CHILDREN (THIRD DEPT). ​

The Third Department determined Family Court should not have delegated to father its authority to supervise mother’s parenting time and telephone and electronic contact:

Family Court improperly delegated its authority over the mother’s supervised parenting time and telephone and electronic contact with the children to the father. “Unless [parenting time] is inimical to the children’s welfare, the court is required to structure a schedule which results in frequent and regular access by the noncustodial parent. In so doing, the court cannot delegate its authority to determine [parenting time] to either a parent or a child” … . Family Court ordered that the mother’s supervised parenting time “shall be arranged as to time, place, circumstances and supervisor as determined by the [f]ather” and that the mother shall have telephone, Facetime and/or other similar contact with the children “as permitted by the [f]ather.”

Although the father has sole custody of the children and, in such capacity, has discretion in the selection of an appropriate supervisor, Family Court failed to provide parameters with respect to the frequency of the supervised parenting time to which the mother is entitled and … failed to consider the logistical concerns in ensuring that she has frequent and regular access to the children … . Matter of Jessica HH. v Sean HH., 2021 NY Slip Op 04165, Third Dept 7-1-21

 

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THE JUDGE’S SUA SPONTE ASSESSEMENT OF RISK LEVEL POINTS WHICH WERE NOT REQUESTED BY THE PEOPLE OR THE BOARD VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS (SECOND DEPT).

The Second Department, reversing County Court, determined defendant’s due process rights were violated when the judge, sua sponte, assessed risk-level points which were not requested by the People or the Board of Examiners of Sex Offenders:

“The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment” … . “A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment” … . Thus, “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to respond” … .

Here, as correctly conceded by the People, the County Court’s assessment of these points, without prior notice to the defendant, deprived him of a meaningful opportunity to respond to the assessment … . People v Montufar-Tez, 2021 NY Slip Op 04158, Second Dept 6-30-21

 

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THE PROSECUTION’S REASONS FOR EXCLUDING AN AFRICAN-AMERICAN PROSPECTIVE JUROR WERE PRETEXTUAL; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, in a full-fledged opinion by Justice Renwick, determined the two explanations offered by the prosecution for excluding an African-American prospective juror were pretextual and should not have been accepted by the court:

On its face, the subject explanation, that an older gentleman with no children living with roommates would not able to appreciate a domestic violence situation, was not a valid trial-related concern at all. “To recognize the proffered explanation as valid and legitimate would, in our view, emasculate the constitutional protection recognized in Batson . . . and we refuse to do so” … . In fact, the prosecutor does not cite to a single case where this Court or any other court has found such a dubious explanation as a valid-race neutral reason. * * *

… [T]he second explanation was equally pretextual. In essence, the prosecution explained that it “selected people who had higher level jobs with all other things being equal,” as well as “[p]eople who indicated that they read.” According to the prosecutor, those types of jurors had more capacity to follow the instructions and understand the law. The prosecutor’s explanation is essentially an attempt to convince this Court with the preposterous proposition that only jurors with “higher level jobs” can effectively consider all the evidence in this case. While a juror’s employment status might be an appropriate race-neutral reason for exclusion, it should be related to the facts of the case … . However, if the employment of the potential juror has no connection with the specific facts of the case then an exclusion of such a juror could constitute discrimination … .

… [T]he prosecutor did not relate his concerns about the prospective juror’s employment to the factual circumstances of the case. People v Murray, 2021 NY Slip Op 04108, First Dept 6-29-21

 

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DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION AT THE TIME OF THE GUILTY PLEA; PLEA VACATED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the plea was not knowingly and voluntarily entered because defendant was not informed of the period of postrelease supervision:

… [F]or a plea of guilty to be knowing, intelligent, and voluntary, the court must inform the defendant of either the specific period of postrelease supervision that will be imposed or, at the least, the maximum potential duration of postrelease supervision that may be imposed … . People v Benitez, 2021 NY Slip Op 03600, Second Dept 6-9-21

Similar issue and result in People v Dillon, 2021 NY Slip Op 03607, Second Dept 6-9-21

 

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THE J.H.O./REFEREE WAS NOT AUTHORIZED BY CPLR 3104 OR ANY ORDER ISSUED BY THE COURT TO CONSIDER AN ALLEGED DEFICIENCY IN THE AMENDED BILL OF PARTICULARS; THE ISSUE PRESENTED A QUESTION OF LAW WHICH COULD NOT HAVE BEEN AVOIDED BELOW, THEREFORE IT MAY BE RAISED FOR THE FIRST TIME ON APPEAL; ORDER STRIKING THE COMPLAINT VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Judicial Hearing Officer (J.H.O)/Referee did not have the authority to grant defendants motion to strike the complaint on the ground the amended bill of particulars did not comply with prior court orders. A bill of particulars is not part of any disclosure procedure which CPLR 3104 authorizes a referee to supervise. Because this is question of law could not have been avoided if brought up below, the issue can be raised for the first time on appeal:

“Since a bill of particulars is not a disclosure device but a means of amplifying a pleading, the present dispute over the contents of the [plaintiffs’ amended] bill[s] of particulars is not part of any disclosure procedure that CPLR 3104 authorizes a referee to supervise” … . Since CPLR 3104 did not authorize the J.H.O./Referee to determine the defendants’ separate motions, among other things, to strike the complaint insofar as asserted against each of them based upon the defendants’ objections to the plaintiffs’ amended bills of particulars, and there exists no order of reference authorizing the J.H.O./Referee to determine the defendants’ motions, the J.H.O./Referee was without authority to determine the defendants’ separate motions, inter alia, to strike the complaint insofar as asserted against each of them … . Kramarenko v New York Community Hosp., 2021 NY Slip Op 03450, Second Dept 6-2-21

 

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THE JURY’S FINDING THAT PLAINTIFF IN THIS SLIP AND FALL CASE WAS NEGLIGENT BUT THAT DEFENDANT WAS 100% RESPONSIBLE WAS AGAINST THE WEIGHT OF THE EVIDENCE; ALLOWING PLAINTIFF’S DOCTOR TO TESTIFY DEFENDANT’S DOCTOR WAS HIRED BY AN INSURANCE COMPANY, WITHOUT GIVING A CURATIVE INSTRUCTION, WAS REVERSIBLE ERROR (FIRST DEPT).

The First Department, ordering a new trial on liability and damages in this slip and fall case, determined the finding that plaintiff was negligent but that defendant was 100% responsible was against the weight of the evidence. In addition, allowing plaintiff’s physician to mention that defendant’s physician was hired by an insurance company was reversible error. Both parties had requested Pattern Jury Instruction (PJI) 2:36 on comparative fault. The judge denied that request and instructed the jury with PJI 2:90 which addresses comparative fault. The First Department did not find the denial of the request for PJI 2-36 was error, but noted that the jury clearly misunderstood the concept of comparative fault. Plaintiff alleged she tripped over a stool which was two-feet high:

It is clear that the jury’s verdict, finding that plaintiff was negligent, but that her negligence was not a substantial factor in causing the accident was against the weight of the evidence, and indicates that the jury had a fundamental misunderstanding of the concept of comparative negligence. In this case, “the issues of negligence and proximate cause are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause.” * * *

Evidence that a defendant carries liability insurance is generally inadmissible, as it is both collateral and prejudicial … . The passing reference to insurance or similar benefits will not necessarily result in reversal … . However, if the testimony goes beyond mere mention of insurance, then a mistrial may be warranted … . Here, plaintiff’s doctor’s testimony, together with the court’s failure to immediately give a curative instruction was prejudicial, and constituted reversible error, further warranting a new trial. Campbell v St. Barnabas Hosp., 2021 NY Slip Op 03404, First Dept 6-1-21

 

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FAMILY COURT SHOULD NOT HAVE ORDERED THE PARTIES TO EQUALLY SHARE THE COSTS OF FATHER’S SUPERVISED VISITATION WITHOUT EVALUATING THE PARTIES’ FINANCES (SECOND DEPT).

The Second Department determined Family Court properly found father had committed the family offense of harassment and properly ordered therapeutic supervised parental access for father. However, Family Court should not have order the parties to equally share the expense of supervised parental access without evaluating the parties’ ability  to pay:

The Family Court should not have directed the parties to equally share the costs of the father’s supervised parental access, without evaluating the parties’ “economic realities,” including the father’s ability to pay and the actual cost of each visit … . Accordingly, we remit the matter to the Family Court, Orange Country, for a hearing to resolve those issues, and a determination thereafter regarding the parties’ respective shares of the costs for the father’s supervised therapeutic parental access. Matter of Livesey v Gulick, 2021 NY Slip Op 03321, Second Dept 5-26-21

 

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FATHER’S ABILITY TO BRING FUTURE PETITIONS FOR CUSTODY SHOULD NOT HAVE BEEN CONDITIONED UPON HIS UNDERGOING TREATMENT OR COUNSELING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s ability to bring future custody petitions should not have been condition upon father’s undergoing counseling or treatment:

A court deciding a custody proceeding may “direct a party to submit to counseling or treatment as a component of a [parental access] or custody order” … . “A court may not, however, order that a parent undergo counseling or treatment as a condition of future [parental access] or reapplication for [parental access] rights” … . Here, the Family Court erred in conditioning the filing of any future petitions by the father to modify parental access upon his successful completion of an anger management class and a negative drug test, and we modify the order so as to eliminate that condition. Matter of Hardy v Hardy. 2021 NY Slip Op 03320. Second Dept 5-26-21

 

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