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MOTHER’S PETITION TO MODIFY THE PARENTAL ACCESS SCHEDULE SHOULD NOT HAVE BEEN RULED ON WITHOUT HOLDING A HEARING, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge should not have ruled in this custody proceeding without holding a hearing. Mother had filed a petition seeking modification of the parental access schedule:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry'” … . This rule “furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … .

Although the Court of Appeals has “decline[d] . . . to fashion a ‘one size fits all’ rule mandating a hearing in every custody case statewide,” it has cautioned that a court “opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … . The Court of Appeals has, therefore, criticized the “undefined and imprecise ‘adequate relevant information’ standard” as entailing “an unacceptably-high risk” of resulting in custody determinations that neither “conform to the best interest of a child” nor “adequately protect” a parent’s “fundamental right . . . ‘to control the upbringing of a child'”… . Accordingly, “[w]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required” … .

Here, the record demonstrates disputed factual issues so as to require a hearing on the issue of the father’s parental access … . Moreover, the Family Court, in making its determinations without a hearing, relied upon the hearsay statements and conclusions of the forensic evaluator, whose opinions and credibility were untested by the parties. Contrary to the contention of the mother and the attorneys for the children, “the court’s mere reliance upon ‘adequate relevant information,’ as opposed to admissible evidence, was erroneous” … . Matter of Corcoran v Liebowitz, 2020 NY Slip Op 08058, Second Dept 12-30-20

 

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DEFENDANT WAS NOT INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, THE JUDGE IMPROPERLY IMPOSED AN ENHANCED SENTENCE AND CHANGED THE TERMS OF THE PLEA AGREEMENT; GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea in the interest of justice, determined: (1) defendant was not informed of the rights he was giving up by pleading guilty; (2) the judge improperly enhanced defendant’s sentence; and (3) the judge improperly changed the terms of the plea agreement:

County Court advised defendant that, by pleading guilty, he would be giving up “all of [his] constitutional rights, [his] presumption of innocence, [his] rights to a jury trial, suppression hearings, also all of [his] appellate rights.” There was no mention of defendant’s right to be confronted by witnesses or the privilege against self-incrimination … . Furthermore, the record fails to disclose that the court ascertained whether defendant conferred with his counsel regarding the trial-related rights that were being forfeited upon his guilty plea … . Rather, the court merely asked him whether he had enough time to talk with his counsel about “the facts of [the] drug charges, going to trial, not going to trial[] and things like that” and “[his] jury trial rights, all [his] other rights.” In the absence of any affirmative showing that defendant fully comprehended and voluntarily waived his constitutional rights, the plea must be vacated as invalid … . … “A sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed” … . The plea colloquy reflects that, by pleading guilty, the People would recommend that defendant be sentenced to concurrent prison terms of 3½ years … . … [T]he court abruptly sentenced defendant to concurrent prison terms of nine years … and directed that the sentence be served under the supervision of Willard. County Court abused its authority by changing the terms of the plea agreement … . … [T]he court, without any discussion with the parties, unilaterally conditioned defendant’s opportunity to participate in the Willard program on accepting the maximum nine-year sentence. Additionally, the record does not indicate that defendant was given the opportunity to withdraw his plea … . Because defendant was not informed of, or actually understood, the ramifications of the sentencing change nor was provided with the opportunity to withdraw his guilty plea, the plea was invalid …”. People v Drayton, 2020 NY Slip Op 07952, Third Dept 12-24-20

 

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FATHER SHOULD NOT HAVE BEEN SENTENCED TO JAIL FOR NONPAYMENT OF CHILD SUPPORT BECAUSE HE HAD PAID THE ARREARS BEFORE THE ORDER OF COMMITMENT WAS ISSUED (THIRD DEPT).

The Third Department, reversing Family Court, determined it was an abuse of discretion to sentence father to jail for failure to pay child support after father paid the arrears:

The father contends that Family Court abused its discretion by imposing a 90-day jail sentence for the father’s willful violation of the prior support order. We agree. Where a willful violation has been found, Family Court may “commit the respondent to jail for a term not to exceed six months” … .  “Such a sentence is in the nature of a civil contempt, which may only continue until such time as the offender, if it is within his or her power, complies with the support order” … . Here, the father presented payment at the hearing for the full amount of arrears owed and, therefore, Family Court abused its discretion when it issued the order of commitment … . Matter of Rondeau v Jerome, 2020 NY Slip Op 07960, Third Dept 12-24-20

 

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THE APPELLATE DIVISION REDUCED DEFENDANT’S SENTENCE, IN PART BECAUSE THE SENTENCING JUDGE MAY HAVE BEEN REACTING TO CRITICISM OF HOW THE TRIAL WAS HANDLED (SECOND DEPT).

The Second Department, reducing defendant’s sentence, over a dissent, determined the sentencing judge reacted to criticism of how the trial was conducted:

The Supreme Court imposed the maximum period of imprisonment of 4½ years’ incarceration …  and 2 years postrelease supervision … , apparently based upon the defendant’s claim during the presentence interview that the judge, the prosecutor, and the jury showed favoritism to the arresting officer, and the defendant did not like how the trial was conducted. At sentencing, when the court asked the defendant to explain that statement, the defendant stated that, although he thought the jury showed “favoritism,” he wanted “to move on from this” and he”learned [his] lesson.” The court, in response, stated that although “[o]bviously this is not the crime of the century,” and “you’re entitled to your opinion,” that opinion demonstrated a “willingness not to accept any responsibility.”

“An intermediate appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances” … . Contrary to the conclusion of our dissenting colleague, that power “may be exercised, if the interest of justice warrants, without deference to the sentence court” … , especially where, as here, the sentencing court acted, at least in part, out of umbrage to criticism as to how the trial was conducted. In this case, considering the nonviolent nature of the crime involving a relatively small amount of drugs in the defendant’s possession, the defendant’s reported substance abuse issues, and the fact that the defendant is married and has a young child, the sentence was excessive to the extent indicated herein … . People v Morales, 2020 NY Slip Op 07919, Second Dept 12-23-20

 

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THE DECRETAL PARAGRAPH OF THE APPELLATE DECISION REMITTING THE MATTER FOR RETRIAL DID NOT IMPOSE THE CONDITIONS ON RETRIAL WHICH WERE IMPOSED BY SUPREME COURT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the decretal paragraph in the appellate decision remitting the matter to Supreme Court did not impose restrictions on the issues to be retried:

“‘A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court”‘ … . “An order or judgment entered by the lower court on a remittitur ‘must conform strictly to the remittitur'” … . The language in the decretal paragraph controls the extent of the remittitur … .

Here, there is no limiting language in the decretal paragraph of our prior decision and order that would indicate that the new trial would be on issues of apportionment of liability among the defendants. Further, there is no language in that decretal paragraph indicating that the damages awards remain undisturbed. Accordingly, the Supreme Court should not have limited the new trial to issues of apportionment of liability among the defendants. Daniele v Pain Mgt. Ctr. of Long Is., 2020 NY Slip Op 07860, Second Dept  12-23-20

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, IMPOSED AN INJUNCTION AND DETERMINED ISSUES OF FACT; NO MOTION WAS BEFORE THE COURT AND NO HEARING WAS HELD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, imposed an injunction on defendant and determined issues of fact without a motion before the court and without holding a hearing:

The Supreme Court, after a status conference … , issued an order, sua sponte, … which, … directed the defendant … to take all steps necessary to obtain a permit from the Department of Buildings to complete the work on one of the subject properties and expedite repairs to that property, including the submission of new plans by the defendant … .

Since no motion was pending before it, the Supreme Court should not have, sua sponte, and without a hearing, imposed an injunction on the defendant and determined issues of fact … . “A court is generally limited to noticed issues that are the subject of the motion before it” … . … The plaintiffs did not move for an injunction … and the court did not hold a hearing … . City of New York v Quadrozzi, 2020 NY Slip Op 07857, Second Dept 12-23-20

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, INCREASED A PENALTY TO WHICH THE PARTIES HAD AGREED IN A SO-ORDERED STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge, sua sponte, should not have increased a penalty to which the parties had stipulated:

“A so-ordered stipulation is a contract between the parties thereto and as such, is binding on them and will be construed in accordance with contract principles and the parties’ intent” … . “When an agreement between parties is clear and unambiguous on its face, it will be enforced according to its terms and without resort to extrinsic evidence” … . Accordingly, a court “should not, under the guise of contract interpretation, ‘imply a term which the parties themselves failed to insert’ or otherwise rewrite the contract” … .

Here, we disagree with the Supreme Court’s sua sponte determination to change the $1,000 per week penalty set forth in the 2013 stipulation … . Although the New York City Landmarks Preservation Law authorizes a penalty of up to $5,000 per day … ,  the parties expressly agreed to a different penalty in their 2013 stipulation. Thus, the court should not have “rewritten” the terms of the 2013 stipulation by changing the amount of the penalty agreed to by the parties. City of New York v Quadrozzi, 2020 NY Slip Op 07856, Second Dept 12-23-20

 

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THE DEFENDANTS DEFAULTED IN THIS FORECLOSURE ACTION; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT BASED ON THE BANK’S ALLEGED FAILURE TO COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, WHICH IS NOT A JURISDICTIONAL DEFECT AND THEREFORE MUST BE RAISED AS A DEFENSE (SECOND DEPT).

The Second Department determined the judge should not have, sua sponte, dismissed the complaint in this foreclosure action on the ground the bank did not comply with the notice requirements of RPAL 1304. The defendants defaulted and failure to comply with RPAPL 1304 is not a jurisdictional defect. Therefore it must be raised as a defense before a judge can rule on it:

In this action to foreclose a mortgage, in which the defendants failed to appear or answer the complaint, the Supreme Court should have granted the plaintiff’s motion for leave to enter a default judgment and for an order of reference, and should not have, sua sponte, directed dismissal of the complaint based on its determination that the plaintiff failed to establish that it complied with RPAPL 1304 … . Therefore, a plaintiff is not required to disprove the defense unless it is raised by defendants, and in this case the defendants failed to appear in the action or answer the complaint … . Chase Home Fin., LLC v Guido, 2020 NY Slip Op 07854, Second Dept 12-23-20

 

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THE SENTENCING COURT DID NOT CONSIDER THE REQUIRED FACTORS WHEN SENTENCING DEFENDANT AFTER DEFENDANT’S VIOLATION OF THE TERMS OF INTERIM PROBATION; SENTENCE VACATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the sentencing court did not take the necessary factors into consideration in sentencing defendant after defendant violated the terms of interim probation:

We agree with defendant that the court failed to exercise its discretion at sentencing. “[T]he sentencing discretion is a matter committed to the exercise of the court’s discretion . . . made only after careful consideration of all facts available at the time of sentencing” … . Due consideration should be “given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … .

Here, the court initially imposed a sentence of interim probation and advised defendant that, if he violated the terms of interim probation, the court would impose a term of 4½ years’ incarceration with 3 years’ postrelease supervision. When defendant violated the terms of interim probation, the court informed defendant at sentencing that it would not consider a lesser sentence because “your word is your word. That was the deal. I don’t think that would speak well for the program nor would it speak well of me . . . I’d lose confidence in myself.” The court further stated that “[w]e made an agreement, we made a deal . . . I’m going to abide by that deal.” The sentencing transcript is devoid of any indication that the court considered the crime charged, defendant’s circumstances, or the purpose of the penal sanction … . Nor is there any indication that the court considered the presentence report, which was prepared after the plea. We conclude that “the sentencing transcript, read in its entirety, does not reflect that the court conducted the requisite discretionary analysis” … . People v Ruise, 2020 NY Slip Op 07785, Fourth Dept 12-23-20

 

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A NUMBER OF GUILTY-PLEA CONVICTIONS REVERSED BECAUSE THE DEFENDANTS WERE TOLD THE WAIVER OF APPEAL WAS AN ABSOLUTE BAR TO APPEAL (CT APP).

The Court of Appeals, over an extensive dissent with respect to one case, reversed a number of guilty-plea convictions because the judges told the defendants the waiver was an absolute bar to appeal:

The waivers of the right to appeal were invalid and unenforceable pursuant to our analysis in People v Thomas (34 NY3d 545 [2019]). It is well-settled that “a waiver of the right to appeal is not an absolute bar to the taking of a first-tier direct appeal” … . Nonetheless, in each case, among other infirmities, the rights encompassed by an appeal waiver were mischaracterized during the oral colloquy and in written forms executed by defendants, which indicated the waiver was an absolute bar to direct appeal, failed to signal that any issues survived the waiver and, in the Queens and Orleans Counties cases, advised that the waiver encompassed “collateral relief on certain nonwaivable issues in both state and federal courts” … . Viewing these deficiencies in the context of the record in each case and considering the totality of the circumstances, including in several cases defendants’ significant mental health issues … , we cannot say that “defendants comprehended the nature [and consequences] of the waiver of appellate rights” … . People v Bisono, 2020 NY Slip Op 07484, CtApp 12-15-20

 

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