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Department of Corrections Has Right to Force-Feed Inmate on Hunger Strike

The Court of Appeals determined that the state has the right to force-feed an inmate (Dorsey) who is on a hunger strike, once the inmate’s life is in jeopardy.  The opinion by Judge Graffeo is lengthy and deals with preservation requirements, the mootness doctrine, as well as the constitutional rights implicated in the refusal of medical care.  Judge Lippman dissented, addressing primarily his view that the issues discussed on appeal had not been preserved and the “exception to mootness” doctrine had been misapplied.  Judge Graffeo wrote:

It is therefore evident that DOCCS’ decision to intervene when Dorsey’s hunger strike progressed to the point that his life was in jeopardy was reasonably related to legitimate penological objectives. Taking action to interrupt an inmate hunger strike not only serves to preserve life and prevent a suicide but also to maintain institutional order and security. There was no way that DOCCS could effectuate these interests other than to seek a judicial order permitting feeding by nasogastric tube — less intrusive means had been attempted without success. Dorsey had been moved to the infirmary and medical staff within the facility had repeatedly counseled him in an attempt to get him to voluntarily abandon the hunger strike (as he had done before) to no avail. Matter of Bezio v Dorsey, No 65, CtApp, 5-2-13

 

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Conviction Reversed on Ineffective Assistance of Counsel Grounds

After reviewing a litany of errors made by defense counsel which demonstrated a lack of familiarity with the procedural and evidentiary principles underlying a criminal prosecution, the Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed defendant’s conviction because of the ineffectiveness of his counsel:

In order to sustain a claim of ineffective assistance of counsel, a court must consider whether defense counsel’s actions at trial constituted “‘egregious and prejudicial’ error such that defendant did not receive a fair trial” ….. While a single error by defense counsel at trial generally does not constitute ineffective assistance …, courts must examine defense counsel’s entire representation of defendant …. “[T]he claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole” …. “Defense counsel are charged with managing the day-to-day conduct of defendant’s case and making strategic and tactical decisions” …. Counsel’s performance in fulfilling this role is “objectively evaluated” …”to determine whether it was consistent with strategic decisions of a ‘reasonably competent attorney'” ….  While defense counsel’s errors in thiscase individually may not constitute ineffective assistance, “the cumulative effect of defense counsel’s actions deprived defendant of meaningful representation” …. Defense counsel’s actions throughout this case showed an unfamiliarity with or disregard for basic criminal procedural and evidentiary law. At the very least, a defendant is entitled to representation by counsel that has such basic knowledge, particularly so, when that defendant is facing a major felony with significant liberty implications. Considering the seriousness of the errors in their totality, we conclude that defendant was deprived of a fair trial by less than meaningful representation. People v Oathout, No 81, CtApp, 5-2-13

 

Sentencing Court Need Not Inform Defendant of Possible Consequences of Violating Postrelease Supervision

In finding that a defendant need not be informed at sentencing of the consequences of violating postrelease supervision, the Court of Appeals, in a full-fledged opinion by Judge Read, explained:

We have repeatedly held that a trial court “must advise a defendant of the direct consequences of [a] plea,” but “has no obligation to explain to defendants who plead guilty the possibility that collateral consequences may attach to their criminal convictions” * * *. By contrast, collateral consequences are “peculiar to the individual and generally result from the actions 104 taken by agencies the court does not control”* * *. … [T]he consequences of violating postrelease supervision are uncertain at the time of the plea, depending, as they do, upon how a defendant acts in relation to a condition tailored to his circumstances and imposed in the future. Thus, such consequences are properly described as “peculiar” to the individual. Second, the New York State Board of Parole — not the courts — is responsible for establishing the conditions of a defendant’s postrelease supervision * * *. In sum, the ramifications of a defendant’s violation of the conditions of postrelease supervision are classic collateral consequences of a criminal conviction – – i.e., they are “peculiar to the individual” and the product of “actions taken by agencies the court does not control”… . People v Monk, No 77, CtApp, 4-30-13

 

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Attorney in Assigned Counsel Program Did Not Have Standing To Sue County for More Pay

An attorney who participated in Onondaga County’s Assigned Counsel Program (ACP) sued the county and the program for money damages, claiming he was entitled to more pay for the legal work he had done, and for a declaratory judgment finding that the AVP manual was a nullity because the regulations in the manual usurped the authority of judges to fix assigned-counsel compensation. The Court of Appeals determined the attorney did not have standing to bring the lawsuit. Roulan v County of Onondaga…, No 62, CtApp, 4-30- 13

 

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Legal Criteria for Determining Visitation Rights of Incarcerated Father Clarified

The Court of Appeals, in a full-fledged opinion by Judge Pigott, held that there is a rebuttable presumption in favor of a child’s visitation with an incarcerated parent and that denial of such visitation must be supported by “substantial evidence.” In order to clarify the law in this area, the court explained:

A rebuttable presumption that a noncustodial parent will be granted visitation is an appropriate starting point in any initial determination regarding custody and/or visitation. Moreover, the rebuttable presumption in favor of visitation applies when the parent seeking visitation is incarcerated. A parent who is in prison does not forfeit his or her visitation rights by being incarcerated. “[P]etitioner’s incarceration, standing alone, does not make a visitation order inappropriate,” but a demonstration “that such visitation would be harmful to the child will justify denying such a request” …. In deciding whether the presumption is rebutted, the possibility that a visit to an incarcerated parent would be harmful to the child must be considered, together with other relevant facts. Visitation should be denied where it is demonstrated that under all the circumstances visitation would be harmful to the child’s welfare, or that the right to visitation has been forfeited. In speaking of the manner in which the presumption of visitation may be rebutted, the Appellate Division has frequently used the terms “substantial proof” and “substantial evidence.” “[T]he sweeping denial of the right of the father to visit or see the child is a drastic decision that should be based upon substantial evidence” … . This language is intended to convey to lower courts and practitioners that visitation will be denied only upon a demonstration “ that visitation would be harmful to the child “ that proceeds by means of sworn testimony or documentary evidence. Matter of Granger v Misercola, No 72, CtApp, 4-30-13

 

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Pursuant to CPLR 5225, a Parent Bank Can Not Be Garnished Because a Judgment Debtor’s Assets Are Held in a Foreign Subsidiary Bank

The question before the Court of Appeals was whether a judgment creditor, pursuant to CPLR 5225, can obtain a turnover order against a bank to garnish the assets held by the bank’s foreign subsidiary. The plaintiff in this case, the Commonwealth of the Northern Mariana Islands, obtained two tax judgments against the tax debtors (the Millards) for over $18,000,000 each. The Millards left the commonwealth before the judgments were issued and settled in the Cayman Islands. The judgments were registered in the Southern District of Florida. The Canadian Imperial Bank of Commerce (CIBC) had a branch in New York. The commonwealth sought to garnish CIBC under the theory that the Millards had accounts in subsidiaries of CIBC, namely First Carribean International Bank Limited (CFIB) or its affiliates in the Cayman Islands. In determining the commonwealth could not get at the Millards assets in the Cayman Islands through the parent Canadian bank, the Court of Appeals, in a full-fledged opinion by Judge Rivera, wrote:

Under CPLR article 52, a special proceeding for a turnover order is the procedural mechanism devised by the Legislature to enforce a judgment against an asset of a judgment debtor, held in the “possession or custody” of a third-party.* * * … [W]e interpret the omission of “control” from section 5225 (b) as an indication that “possession or custody” requires actual possession. Commonwealth of the Northern Mariana Islands v Canadian Imperial Bank of Commerce …, No 58, CtApp, 4-30-13

 

Okay to Close Portion of Trial to Public to Protect Safety of Undercover Officers

As the Court of Appeals explained, in a full-fledged opinion by Judge Graffeo, the issue and ruling:

“The primary issue in each of these buy-and-bust cases is whether the trial court properly closed the courtroom to the general public during the testimony of undercover officers. We conclude that the limited closures comported with Sixth Amendment public trial principles…”. In each of the three cases before the court, the trial judge closed the trial to the public when the undercover officers testified to protect the officers’ safety. Whether the officers’ safety would be jeopardized by testimony in open court must be demonstrated in a hearing. The court explained the applicable law and findings as follows: The United States Supreme Court has explained that a courtroom closure must satisfy a four-part standard to comport with the requirements of the Sixth Amendment: “[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure” (Waller v Georgia, 467 US 39, 48 [1984]). Only the first prong (overriding interest) and third prong (reasonable alternatives) are at issue in these cases. * * * …[T[he trial court in each instance held a … hearing and made a particularized finding that requiring the undercover officers to testify in open court would create a genuine risk to their physical safety. The trial courts limited the closures to the portions of the proceedings directly implicating the overriding interest — the undercover officers’ safety — by ordering the courtrooms closed only for the duration of the officers’ testimony. People v Echevarria, et al, Nos 59, 60, 61, CtApp, 4- 30-13

 

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Question of Fact Raised by Verified Pleadings Re When Accident Happened

The Court of Appeals (with a dissent) held that a question of fact about when an accident occurred had been raised by plaintiff’s verified pleadings.  The defendant submitted evidence the accident occurred on February 5, making plaintiff’s action untimely.  Plaintiff’s verified pleadings stated the accident occurred on February 10, making plaintiff’s action timely.  In light of the question of fact raised by the verified pleadings, the Court of Appeals reversed the grant of summary judgment to the defendant.  Sanchez v National Railroad Passenger Corp, No 76, CtApp, 4-25-13

 

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“Depraved Indifference to Human Life” Defined Differently in Family Law, as Opposed to Criminal Law, Context​

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that the phrase “depraved indifference to human life” as it is used in Social Services Law 384-b(8)(a)(i) to define when a child has been “severely abused” does not have the meaning ascribed to the same phrase under the Penal Law.  In addition, the court clarified the statutory conditions which relieve a social services agency of the requirement to make diligent efforts to reunite the child with the abusive parent.  Judge Read wrote:

Social Services Law § 384-b (8) (a) (i) provides that a child can be found to be severely abused “as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life” (emphases added). Under the Penal Law, however, a crime requiring proof of an intent to kill can never be committed with depraved indifference … [“[I]t has never been permissible in New York for a jury to convict a defendant of depraved indifference murder where the evidence produced at trial indicated that if the defendant committed homicide at all, he committed it with the conscious objective of killing the victim” … . Additionally, “[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances” …, whereas acts of child abuse necessarily involve one-on-one violence. In short, our depraved indifference jurisprudence under the Penal Law has no bearing on whether a child is severely abused within the meaning of Social Services Law § 384-b (8) (a) (i). For purposes of that statute “circumstances evincing a depraved indifference to human life” refers to the risk intentionally or recklessly posed to the child by the parent’s abusive conduct.  Matter of Dashawn W …, No 71, CtApp, 4-25-13

 

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Admission in Evidence of Defendant’s Statements About Prior Murders Did Not Rise to a Constitutional Injury—Harmless Error Doctrine Applied

The Court of Appeals held that the admission at trial of statements made by the defendant indicating he had committed murders other than the murder with which he was charged “did not rise to the level of constitutional injury such as ineffectiveness of counsel or juror partiality.”  Therefore, the harmless error doctrine applied and, in light of the evidence against the defendant, the conviction was affirmed.  People v Byer, No 84, CtApp, 4-25-13

 

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