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THE COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER DEFENDANT WAS INFORMED BY DEFENSE COUNSEL OF A PLEA OFFER WHICH WAS MORE LENIENT THAN THE OFFER TO WHICH HE PLED (THIRD DEPT).

The Third Department, reversing County Court, determined that the court should have held a hearing to determine whether defendant was informed of a plea offer by defense counsel. Defendant argued the failure to inform him of the plea offer, which was more lenient than the offer to which he pled, constituted ineffective assistance of counsel:

To make out “an ineffective assistance of counsel claim based upon the defense counsel’s failure to adequately inform the defendant of a plea offer,” a defendant must show “that the People made the plea offer, that the defendant was not adequately informed of the offer, that there was a reasonable probability that the defendant would have accepted the offer had counsel adequately communicated it to him [or her], and that there was a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement” … . …

There is no dispute that the People made a preindictment plea offer more lenient than the one that defendant later accepted — an offer that the People presumably extended “in a fair and honest manner” and believed would pass muster with County Court … — and that the offer was rejected and withdrawn. Defendant averred that he did not know about this offer and would have accepted it. People v Nitchman, 2019 NY Slip Op 04501, Third Dept 6-6-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT AND VACATED THE DEFAULT JUDGMENT, ALTHOUGH A SUA SPONTE ORDER IS NOT APPEALABLE AS OF RIGHT, THE NOTICE OF APPEAL WAS DEEMED A MOTION FOR LEAVE TO APPEAL (FIRST DEPT). ​

The First Department, reversing Supreme Court, held that Supreme Court should not have, sua sponte, dismissed plaintiff’s complaint and vacated the default judgment as untimely, Plaintiff had timely moved for a default judgment. Although sua sponte orders are not appealable as of right, the First Department deemed the notice of appeal as a motion for leave to appeal:

An order issued sua sponte is not appealable as of right (see Sholes v Meagher, 100 NY2d 333, 335 [2003]). However, given the nature of the motion court’s sua sponte relief in dismissing the complaint pursuant to CPLR 3215(c), we deem the notice of appeal to be a motion for leave to appeal, and grant such leave (…CPLR 5701[c]).

The record is clear that plaintiff had moved for a default judgment within one year, and thus, the motion court’s sua sponte vacature of the judgment and dismissal of the complaint as untimely was in error … . In view of this decision, the merits of defendant’s motion to vacate the default judgment are no longer moot and it is remanded back to the trial court for consideration on the merits. New Globaltex Co., Ltd. v Zhe Lin, 2019 NY Slip Op 04456, First Dept 6-6-19

 

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SUPREME COURT SHOULD NOT HAVE MODIFIED A SO-ORDERED STIPULATION ENTERED BETWEEN LANDLORD AND TENANT REQUIRING MONTHLY USE AND OCCUPANCY PAYMENTS OF OVER $100,000 DURING THE COURT PROCEEDINGS STEMMING FROM THE LANDLORD’S NOTICE OF TERMINATION OF THE LEASE, SUPREME COURT IMPROPERLY REDUCED THE MONTHLY PAYMENTS TO ZERO BASED UPON THE VALUE OF THE PROPERTY TO THE TENANT WHICH WAS ALLEGED TO HAVE BEEN RENDERED WORTHLESS BY THE NOTICE OF TERMINATION, AS OPPOSED TO THE FAIR MARKET RENTAL VALUE OF THE PROPERTY FROM THE LANDLORD’S PERSPECTIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation entered by plaintiff tenant and defendant landlord, pursuant to a Yellowstone Injunction, should not have modified by the judge. The defendant landlord notified plaintiff of several alleged defaults under the lease, and subsequently notified tenant of the termination of the lease. Plaintiff tenant sued defendant landlord and moved for a Yellowstone injunction which the court ordered. The parties entered a so-ordered stipulation requiring plaintiff tenant to pay over $100,000 per month for use and occupancy of the property during the court proceedings. More than a year later plaintiff tenant moved to move to modify the stipulation to reduce the monthly use and occupancy payments and the court reduced the payments to zero:

The so-ordered November 2015 stipulation was negotiated by the parties and accepted by the Supreme Court, and, as a result, may be considered a court order … . “Although the Supreme Court retains inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice, [a] court’s inherent power to exercise control over its judgment is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud], mistake, inadvertence, surprise or excusable neglect” … . Nevertheless, “[u]nder almost any given state of facts, where to enforce a stipulation would be unjust or inequitable or permit the other party to gain an unconscionable advantage, courts will afford relief” … . …

Although the landlord generally has the burden of proving the amount owed by the tenant … , here, it was the plaintiff’s burden, on its motion to modify the “September 22, 2015 order, as amended,” to demonstrate that the payment of use and occupancy in the amount of $111,041.66 per month was unjust.

In concluding that the subject property had no value “as long as the Notice of Default remains on the property,” the Supreme Court erroneously considered the value to the plaintiff of using and occupying the subject property after the lease was purportedly terminated, instead of considering the fair market rental value of the subject property, namely, the amount that a prospective commercial tenant would be willing to pay to lease the subject property from the defendant … . 255 Butler Assoc., LLC v 255 Butler, LLC, 2019 NY Slip Op 04344, Second Dept 6-5-19

 

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ATTORNEY FOR THE CHILD CAN APPEAL A CHANGE OF CUSTODY TO WHICH THE CHILD IS OPPOSED, THE CHILD IS AGGRIEVED FOR APPELLATE PURPOSES, FAMILY COURT SHOULD NOT HAVE HELD A FULL CUSTODY HEARING WITHOUT FIRST ASSESSING THE ALLEGATIONS OF A CHANGE IN CIRCUMSTANCES, AN APPELLATE COURT CAN TAKE JUDICIAL NOTICE OF PRIOR MODIFICATION PETITIONS, AND FAMILY COURT MUST GIVE DUE CONSIDERATION TO THE CHILD’S WISHES (SECOND DEPT).

The Second Department, reversing Family Court, determined, in a full-fledged opinion by Justice Scheinkman, that mother’s petition for a change in custody should not have been granted. The opinion is too comprehensive to be fairly summarized here. Of particular interest is the Second Department’s conclusion that Family Court should have not have held a full custody hearing without first determining whether the allegations warranted it. The Second Department took judicial notice of two prior petitions for modification which were dismissed, the last petition being very close in time to the instant petition.  The opinion is well worth reading in its entirety. It addresses several substantive issues and distinguishes some 4th Department authority. The Second Department summarized the issues and holdings as follows:

This appeal raises several important issues pertinent to child custody determinations. We conclude that: (a) the attorney for the child has the authority to pursue an appeal on behalf of the child from an order determining the custody of the child; (b) the child is aggrieved, for appellate purposes, by an order determining custody; (c) the Family Court should not have held a full custody hearing without first determining whether the mother had alleged and established a sufficient change in circumstances to warrant an inquiry into whether the child’s best interests were served by the existing custodial arrangement; and (d) the Family Court erred in failing to give due consideration to the expressed preferences of the child, who is a teenager. Matter of Newton v McFarlane, 2019 NY Slip Op 04386, Second Dept 6-5-19

 

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PETITIONER, WHO CONSENTED TO PROVIDING A DNA SAMPLE AFTER ARREST, MAY SEEK DISCRETIONARY EXPUNGEMENT OF THE DNA PROFILE AND UNDERLYING DOCUMENTS UPON BEING ADJUDICATED A YOUTHFUL OFFENDER, RESPONDENT JUDGE DIRECTED TO DECIDE WHETHER EXPUNGEMENT IS APPROPRIATE UNDER THE FACTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, granted a writ of mandamus directing the respondent-judge to consider whether the expungement of DNA evidence derived from a sample provided with petitioner’s consent after arrest is appropriate. The petitioner was subsequently adjudicated a youthful offender (YO) and sought expungement on that ground. The DNA evidence is maintained by the New York City Office of Chief Medical Examiner (OCME). The First Department concluded that the OCME is subject to the State Executive Law and a court has the discretionary authority to expunge the YO’s DNA profile from the SDIS (index system used for mutual exchange, use and storage of DNA records), along with the underlying DNA records:

[Re: the propriety of the Article 78 proceeding:] In the absence of an available remedy at law (see CPL 450.20), the important issues raised on this appeal will escape this Court’s review unless this petition proceeds … . Moreover, this Court has original jurisdiction over the issues raised because they concern a sitting justice (CPLR 506[b][1]; 7804[b] …). …

There is abundant support for the conclusion that OCME’s responsibilities in testing, analyzing and retaining DNA data is subject to the State Executive Law. Respondent’s arguments that the statutory reference to a “state” DNA identification index in Article 49-B necessarily excludes a local DNA laboratory like that the one operated by OCME, is unavailing. …

… [W]e hold that the same discretion afforded to a court under the Executive Law to expunge DNA profiles and related records when a conviction is vacated may also be exercised where, as here, a YO disposition replaces a criminal conviction. The motion court, in finding that, as a matter of law, it had no discretion, failed to fulfill its statutory mandate to consider whether in the exercise of discretion, expungement of petitioner’s DNA records was warranted in this case. …

Petitioner did not, either expressly or by implication, waive the privilege of nondisclosure and confidentiality by providing his DNA before the court made its determination that he was eligible for YO status. Clearly the Executive Law permits an adult who has voluntarily given his or her DNA in connection with a criminal investigation the right to seek discretionary expungement where a conviction had been reversed or vacated. A youthful offender does not have and should not be afforded fewer pre-YO adjudication protections than an adult in the equivalent circumstances. Matter of Samy F. v Fabrizio, 2019 NY Slip Op 04120, First Dep 5-28-19

 

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MOLINEUX/SANDOVAL HEARING IN THE HARVEY WEINSTEIN SEXUAL MISCONDUCT PROSECUTION WAS PROPERLY CLOSED TO THE PUBLIC AND THE RECORD OF THE HEARING WAS PROPERLY SEALED, NEWS-MEDIA COMPANIES’ PETITION TO UNSEAL THE RECORD DENIED (FIRST DEPT).

The First Department denied the Article 78 petition brought by news-media companies seeking to unseal the Molineux/Sandoval hearing transcript in the felony sexual misconduct prosecution of Harvey Weinstein. The presiding judge had closed the hearing to the public and sealed the record of it:

While the First Amendment guarantees the public and the press a qualified right of access to criminal trials … , this right of access may be limited where courtroom closure is necessitated by a compelling state governmental interest, and where the closure is narrowly tailored to serve that interest … . Such compelling interests may include the defendant’s right to a fair trial, including the right to “fundamental fairness in the jury selection process” … . …

Proceedings cannot be closed unless specific findings are made on the record, demonstrating that “closure is essential to preserve higher values and is narrowly tailored to serve that interest” … . Where the interest asserted is the right of the accused to a fair trial, specific findings must be made demonstrating that, “there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent,” and “reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights” … .

The subject matter of the Molineux /Sandoval hearing – allegations of prior uncharged sexual offenses by the defendant, the admissibilty of which is disputed – was likely to be prejudicial and inflammatory. Further, some or all of the allegations may have been determined to be inadmissible at trial, or may not be offered at trial even if found potentially admissible. Contrary to petitioners’ suggestion, the People have represented that some of the information has not yet been made public. Matter of New York Times Co. v Burke, 2019 NY Slip Op 03903, First Dept 5-16-19

 

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PLAINTIFF’S MOTION TO SET ASIDE THE JURY VERDICT IN THE INTEREST OF JUSTICE SHOULD NOT HAVE BEEN GRANTED, THE COURT GRANTED THE MOTION BASED UPON REMARKS MADE BY DEFENSE COUNSEL DURING SUMMATION, REMARKS TO WHICH NO OBJECTION HAD BEEN MADE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion pursuant to CPLR 4404 (a) to set aside the jury verdict in this personal injury case should not have been granted. The jury found that plaintiff did not suffer a serious injury within the meaning of the no-fault law (Insurance Law § 5102(d)), and awarded plaintiff $50,000 for lost wages, reduced by $25,000 for failure to wear a seatbelt. The trial judge granted the motion in the interest of justice primarily based upon comments made by defense counsel during summation, comments to which no objection was made:

… [T]he Supreme Court identified eight specific statements made by defense counsel in his closing that the court characterized as improper, in addition to the remarks quoted above. However, none of these statements were objected to. We recognize that common courtesy requires that an attorney allow opposing counsel the opportunity to argue his or her case to the jury without undue or repetitive interruptions. Nevertheless, where counsel, in summing up, exceeds the bounds of legal propriety, it is the duty of the opposing counsel to make a specific objection and for the court to rule on the objection, to direct the jury to disregard any improper remarks, and to admonish counsel from repetition of improper remarks … . Where objection is not, or cannot appropriately be, interposed during summation, counsel should, upon the conclusion of the summation, make appropriate objections, seek curative instructions, or request a mistrial … . Where no objection is interposed, a new trial may be directed only where the remarks are so prejudicial as to have caused a gross injustice, and where the comments are so pervasive, prejudicial, or inflammatory as to deprive a party of a fair trial … . This standard was not met in this case. We stress that the plaintiff’s counsel made no complaint regarding the allegedly prejudicial nature of the defendant’s closing statement until after an adverse verdict was rendered. The verdict that the plaintiff did not sustain a serious injury was supported by the evidence, and the jury had ample reason to reject the plaintiff’s claims and accept the arguments of the defendants.

Accordingly, we reverse the order insofar as appealed from, deny the branch of the plaintiff’s motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial on the issue of damages, and reinstate the jury verdict. Kleiber v Fichtel, 2019 NY Slip Op 03778, Second Dept 5-15-19

 

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TRIAL JUDGE ALLOWED THE PROSECUTOR TO QUESTION DEFENDANT ABOUT THE FACTS UNDERLYING PRIOR CONVICTIONS IN VIOLATION OF THE SANDOVAL RULING, CONVICTIONS REVERSED (SECOND DEPT). ​

The Second Department, reversing defendant’s convictions, determined the trial judge implicitly changed the Sandoval ruling by allowing the prosecutor to cross-examine the defendant about the underlying facts of prior convictions:

Prior to the trial, the Supreme Court conducted a Sandoval hearing (see People v Sandoval, 34 NY2d 371), after which the court ruled that, should the defendant testify on his own behalf, the People would be permitted to ask whether he had two prior felony convictions. However, the People were not permitted to elicit the underlying facts of either of those crimes. …

Without seeking an amendment of the Supreme Court’s Sandoval ruling, the prosecutor then asked whether he was being arrested that day in 2008 “because there was a DNA match of [him] committing a burglary.” Defense counsel objected, the objection was overruled, and the defendant denied that this was true. The prosecutor persisted in that line of inquiry, and asked whether the defendant had been convicted of burglary in the third degree in 2009. The defendant responded that “[y]es [he] was convicted of a case in 2008.” Nonetheless, without asking for a modified Sandoval ruling, the prosecutor brought up, no less than six times, that the 2008 conviction was for burglary and involved DNA, going so far to ask the defendant to “explain” the facts of his 2008 conviction, with the court instructing the defendant to do so. In one instance, after asking the defendant to confirm that he was charged in the instant case with burglary in the second degree, the prosecutor remarked, in effect, that the instant crime was “the same type of DNA hit that happened back in 2008.” …

The defendant here was denied … [the right to make an informed choice whether to testify] when, after making what he believed to be an informed judgment and taking the witness stand, the Supreme Court implicitly changed the ruling upon which he relied by allowing the prosecutor to continue her course of prejudicial questioning despite objections from defense counsel. People v Walters, 2019 NY Slip Op 03632, Second Dept 5-8-19

 

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PROVIDING WRITTEN INSTRUCTIONS TO THE JURY OVER DEFENDANT’S OBJECTION REQUIRED REVERSAL AND A NEW TRIAL, HOT LIQUID CAN BE A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE PENAL LAW (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that “defendant is entitled to a new trial because the court provided written instructions to the jury, at its request, but over defendant’s objection (see People v Johnson , 81 NY2d 980 [1993]).”  The court also noted that the jury could have reasonably found that the hot liquid thrown by defendant qualified as a dangerous instrument (see Penal Law §§ 10.00[10],[13]; see also People v Adolph , 299 AD2d 257, 257 [1st Dept 2002], lv denied 99 NY2d 579 [2003]).”  People v Peralta, 2019 NY Slip Op 03539, First Dept 5-7-19

 

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THE TRIAL JUDGE’S NEGOTIATION OF A PLEA DEAL DIRECTLY WITH THE CO-DEFENDANT, IN RETURN FOR THE CO-DEFENDANT’S ESSENTIAL TESTIMONY IDENTIFYING THE DEFENDANT AS ONE OF THE ROBBERS DEPICTED IN A VIDEO, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurrence, reversing the Appellate Division, determined  the trial judge had deprived defendant of a fair trial by negotiating a plea agreement directly with the co-defendant in return for the co-defendant’s testimony against the defendant. Although the defendant and co-defendant in this robbery case were captured on video, their faces were covered. At trial the co-defendant identified the defendant as the person depicted in the video:

It is undisputed that, as the Appellate Division concluded, the trial court “personally negotiate[ed] and enter[ed] into a quid pro quo cooperation agreement with the codefendant whereby the court promised to sentence the codefendant within a specific range in exchange for his testimony against defendant” (151 AD3d at 1639). In so doing, the trial court improperly “assume[d] the advocacy role traditionally reserved for counsel” … and ventured from its own role as a neutral arbiter “[s]tationed above the clamor of counsel or the partisan pursuit of procedural or substantive advantage” … . Indeed, whatever its subjective intentions, the trial court effectively procured a witness in support of the prosecution by inducing the codefendant to testify concerning statements the codefendant made to police—which identified defendant as one of the robbers—in exchange for the promise of a more lenient sentence. Significantly, by tying its assessment of the truthfulness of the codefendant’s testimony to that individual’s prior statements to police, the trial court essentially directed the codefendant on how the codefendant must testify in order to receive the benefit of the bargain … . Under these circumstances, the trial court’s conduct “conflicted impermissibly with the notion of fundamental fairness” … . That is, 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” (In re Murchison, 349 US at 136). This error is not subject to harmless error review and requires reversal … . People v Towns, 2019 NY Slip Op 03527, CtApp 5-7-19

 

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