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PETITIONER NOT ENTITLED TO COUNSEL IN A STATEWIDE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT (SCR) PROCEEDING; THE STATUTE REQURING EXPUNGEMENT OF AN SCR CHILD MALTREATMENT REPORT IF THE RELATED FAMILY COURT CASE IS DISMISSED DOES NOT APPLY RETROACTIVELY; THE MALTREATMENT REPORT WAS SUPPORTED BY THE EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined (1) petitioner was not entitled to counsel at the Statewide Central Register of Child Abuse and Maltreatment (SCR) administrative hearing, (2) the amendment to the Social Services Law [Social Services Law § 422 [8] [a] [ii]] requiring expungement of a child maltreatment report after a related dismissal in Family Court did not apply retroactively, and (3) the report was supported by the evidence:

ACS [New York City Administration for Children’s Services] commenced a Family Court article 10 neglect proceeding against petitioner and her husband, who had custody of T. and her younger sisters. Family Court authorized an adjournment in contemplation of dismissal (ACD), which allows the court to adjourn the proceedings for a period not exceeding one year “with a view to ultimate dismissal of the petition in furtherance of justice” (Family Court Act § 1039 [b]). In February of 2020, Family Court dismissed the article 10 proceeding upon the expiration of the adjournment period based on petitioner’s satisfactory compliance with Family Court’s conditions, including completion of parenting and anger management classes.

Meanwhile, the police officer who interviewed T. made a report to the Statewide Central Register of Child Abuse and Maltreatment (SCR). One of the SCR’s primary purposes is to inform child care providers and agencies that a person has a substantiated report of child abuse or maltreatment “for the purpose of regulating their future employment or licensure” … . In July of 2019, ACS determined that the report against petitioner was indicated … and petitioner challenged that determination … . After an internal administrative review, the New York State Office of Children and Family Services (OCFS) concluded that a fair preponderance of the evidence supported a determination that petitioner had maltreated T. and that the maltreatment was relevant and reasonably related to employment, licensure, or certification in the child care field … . Matter of Jeter v Poole, 2024 NY Slip Op 05868, CtApp 11-25-24

Practice Point: Petitioner was not entitled to counsel in a SCR child maltreatment proceeding.

Practice Point: The Social Services Law statute which requires expungement of a maltreatment report if the related Family Court proceeding is dismissed does not apply retroactively.

 

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NEW JERSEY TRANSIT CORPORATION CANNOT ASSERT THE SOVEREIGN IMMUNITY DEFENSE IN THIS TRAFFIC ACCIDENT CASE; THE ACCIDENT INVOLVED A NEW JERSEY TRANSIT CORPORATION BUS AND OCCURRED IN NEW YORK CITY (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over two concurrences and a dissent, determined the New Jersey Transit Corporation could not assert the sovereign immunity defense in this traffic-accident case:

In Franchise Tax Bd. of Cal. v Hyatt, the United States Supreme Court recognized that the text and structure of the Federal Constitution not only preserved States’ pre-ratification sovereign immunity, but compelled absolute recognition of that immunity in other States’ courts as a matter of “equal dignity and sovereignty” … . However, the Court did not address how to determine whether a state-created entity is entitled to this immunity. We glean from the Court’s analysis that the relevant inquiry is whether subjecting a state-created entity to suit in New York would offend that State’s dignity as a sovereign. We hold that, to answer this question, courts must analyze how the State defines the entity and its functions, its power to direct the entity’s conduct, and the effect on the State of a judgment against the entity. Considering these factors, we conclude that maintaining this action against defendant New Jersey Transit Corporation (NJT) in our courts would not offend New Jersey’s sovereign dignity and accordingly hold that defendants are not entitled to invoke a sovereign immunity defense. On February 9, 2017, a bus owned and operated by NJT allegedly struck and injured plaintiff Jeffrey Colt as he traversed a crosswalk on 40th Street in Manhattan. The bus was driven by defendant Ana Hernandez, an employee of NJT. Colt and his wife, plaintiff Betsy Tsai, commenced this action on September 18, 2017, asserting causes of action for negligence, negligent hiring, and loss of consortium. Defendants answered the complaint and denied many of plaintiffs’ factual allegations. Defendants asserted—as part of an exhaustive list including many boilerplate defenses—that plaintiffs’ recovery was “barred by lack of jurisdiction over NJT” and “barred as this Court lacks jurisdiction,” and that defendants were “immune from suit.” Colt v New Jersey Tr. Corp., 2024 NY Slip Op 05867, CtApp 11-25-24

Practice Point: Here the New Jersey Transit Corporation could not invoke the sovereign immunity defense to a New York City traffic accident involving a New Jersey Transit Corporation bus.

 

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THE PEBBLES ON WHICH PLAINTIFF SLIPPED MET THE CRITERIA FOR A “FOREIGN SUBSTANCE” AND A “SLIPPERY CONDITION” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; THE MECHANICS OF THE 30-DAY COURT-OF-APPEALS “APPEAL CLOCK” EXPLAINED IN THE CONTEXT OF ELECTRONIC FILING (CT APP).

The Court of Appeals, reversing the Appellate Division’s dismissal of the Labor Law 241(6) causes of action, determined the loose pebbles on which plaintiff slipped were not “inherent in the work” and, therefore, the Industrial Code provisions prohibiting “foreign substances” and “slippery conditions” applied.  In addition, the Court of Appeals held one party’s appeal to the Court was untimely and explained how the 30-day appeal clock works with electronic filing:

* * * To be effective to start CPLR 5513 (b)’s 30-day clock, service must comply with CPLR 2103. CPLR 2103 (b) (7), in turn, empowers the Chief Administrative Judge to authorize electronic service. * * * … [I]n an electronic filing case, service via filing on the NYSCEF docket for the trial court is effective to start CPLR 5513 (b)’s 30-day clock. * * *

Plaintiff testified … that, while attempting to install a 500-pound glass panel into a metal channel cut into the floor of the construction site, he slipped on concrete pebbles—that he believed came from the installation of the metal channel—and sustained injuries to his spine. …

… {Defendants] failed to demonstrate that the concrete pebbles that allegedly created the slipping hazard were integral to the work, because they did not conclusively show that the pebbles were “inherent to the task at hand, and not . . . avoidable without obstructing the work or imperiling the worker” … . As to … Industrial Code § 23-1.7 (d), [defendants] did not demonstrate that the concrete pebbles were not a “foreign substance” because, at the time of the alleged injury, the pebbles were “not a component of the [floor] and w[ere] not necessary to the [floor]’s functionality” … . [Defendants] did not demonstrate that the pebbles did not cause a “slippery condition” … . Regarding Industrial Code § 23-1.7 (e) (2), this provision is not limited to “tripping” hazards … . Ruisech v Structure Tone Inc., 2024 NY Slip Op 05866, CtApp 11-25-24

Practice Point: The pebbles on which plaintiff slipped were not integral to the work and met the criteria for a “foreign substance” and “slippery condition” in the Industrial Code.

Practice Point. Consult this decision for an explanation of the mechanics of the 30-day period for taking an appeal to the Court of Appeals in the context of electronic filing.

 

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THE PARTY SEEKING TO ENFORCE A VENUE CONTRACT PROVISION HAS THE BURDEN OF DEMONSTRATING THE AUTHENTICITY OF THE SIGNATURE IN THE FACE OF AN ALLEGATION OF FORGERY; HERE DEFENDANT DEMONSTRATED THE SIGNATURE WAS AUTHENTIC AND PLAINTIFF FAILED TO RAISE A QUESTION OF FACT RE: THE FORGERY ALLEGATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined the defendant demonstrated the contract which included a venue provision was signed by the decedent and the plaintiff failed to raise a triable question of fact about whether the signature was forged. The court noted that contractual choice of venue provisions are generally enforceable and provided some insight into how a forgery question-of-fact can be raised:

Forum selection clauses may designate a jurisdiction, such as the federal or state court system, or the clause may designate a venue within the State, as was done here by specifying Nassau County as the proper venue … .* * *

… [T]he party moving for a change of venue under CPLR 501 is in effect seeking to enforce a contractual provision. For that reason, … the proponent of the motion bears the initial burden to establish the authenticity of the writing for purposes of a motion to enforce a contractual venue provision … . This may be done through any of the recognized methods of authentication, including, but not limited to, the testimony of a witness who was present at the time of the signing, an admission of authenticity, proof of handwriting, and, as particularly relevant here, through circumstantial evidence … . * * *

Although an expert opinion is not required to raise an issue of fact as to forgery , the movant must nevertheless offer “[s]omething more than a bald assertion,” and in this regard conclusory or self-serving affidavits are inadequate … . Plaintiff offered only an affidavit in which he claimed to be “familiar” with decedent’s handwriting. Based on a summary of certain perceived inconsistencies in the signatures and initials on the agreements, plaintiff asserted that “whoever the person or people who signed and initialed these pages may have been, it was not my mother.” Attached to the affirmation is an undated “exemplar” of what is purportedly decedent’s signature, but no effort is made to establish that the exemplar represents decedent’s signature at the relevant time. Furthermore, the exemplar is purportedly decedent’s handwritten signature, and … electronic signatures may naturally differ from handwritten one … . Knight v New York & Presbyt. Hosp, 2024 NY Slip Op 05870, CtApp 

Practice Point: Contractual provisions designating venue are enforceable.

Practice Point: To enforce a contractual venue provision, in the face of a forgery allegation, the moving party must demonstrate the signature is authentic.

Practice Point: Bald assertions of forgery unsupported by any evidence will not raise a triable question of fact on the forgery issue.

 

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THE TRIAL JUDGE ERRED IN FAILING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE TO THE MURDER CHARGE; THAT FAILURE ALSO MAY HAVE TAINTED THE CRIMINAL-POSSESSION-OF-A-WEAPON CONVICTION, WHICH REQUIRES THE INTENT TO USE THE WEAPON UNLAWFULLY (CT APP). ​

The Court of Appeals, reversing defendant’s murder and criminal possession of a weapon convictions, in a full-fledged opinion by Judge Garcia, determined the judge erred by failing to instruct the jury on the justification defense. The victim threatened defendant with a razor just before shooting. The Court of Appeals noted that if the shooting was justified the “intent to use the weapon unlawfully” element of criminal possession of a weapon may not have been proven:

Defendant was charged with criminal possession of a weapon in the second degree, requiring the People to prove that he possessed the gun with the intent to use it unlawfully against another person … . The model Criminal Jury Instruction provides that “a person acts with intent to use a loaded firearm unlawfully . . . when his . . . conscious . . . purpose is to use that loaded firearm unlawfully against another, and that intent need only exist at the very moment that a person engages in an unlawful use of the firearm against another” … . But if the jury in this case was properly instructed on justification, it might have concluded that defendant acted lawfully when he shot and killed the victim in self-defense. If so, then the jury might have also concluded that defendant lacked the requisite intent (to use unlawfully) for the possession charge … . In other words, it is possible the jury here relied solely on evidence of the potentially justified shooting in finding defendant guilty of possession of the weapon with the intent to use it unlawfully.

To be clear, a jury finding of justification as to the use of a firearm does not preclude that jury from finding that the defendant nevertheless possessed the weapon with intent to use it unlawfully … . But with respect to the possessory offense, the jury must be instructed that, while justification is not a defense to that crime, in the event the jury finds that the shooting was justified, that lawful use of the weapon cannot be considered as proof of the unlawful intent element of the possession charge. For example, the jury’s intent determination may rest on defendant’s conduct “during the continuum of time that he possessed it prior to the shooting” … . People v Castillo, 2024 NY Slip Op 05817, CtApp 11-21-24

Practice Point: If a defendant is charged with murder and criminal possession of a weapon and is entitled to a jury instruction on the the justification defense, the jury should be instructed that it cannot find the defendant possessed the weapon with the intent to use it unlawfully solely on the basis of the shooting, if the shooting is deemed justified.

 

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THE CRITERIA FOR A COURT-OF-APPEALS REVIEW OF AN APPELLATE DIVISION’S WEIGHT-OF-THE-EVIDENCE ANALYSIS IS EXPLAINED; HERE DEFENDANT’S MANSLAUGHTER CONVICTION, BASED ENTIRELY ON CIRCUMSTANTIAL EVIDENCE, WAS PROPERLY REVIEWED BY THE APPELLATE DIVISION, WHICH AFFIRMED THE CONVICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over two concurring opinions and an extensive dissenting opinion by Judge Wilson, determined the Appellate Division properly conducted a weight-of-the-evidence review of an entirely circumstantial manslaughter prosecution (affirming the conviction):

Jorge Baque’s five-month-old daughter was found unresponsive in her crib at 6:30 a.m. on July 30, 2016. Despite efforts to resuscitate her, she was declared dead. An autopsy revealed that the victim had sustained injuries consistent with abusive head trauma and violent shaking. Baque was arrested and charged with manslaughter in the second degree and endangering the welfare of a child. * * *

The question before us is whether the Appellate Division erred as a matter of law in conducting its review of the weight of the evidence, in this purely circumstantial case. Weight of the evidence review is a “unique” power afforded to intermediate appellate courts, and one that they exercise regularly … . It requires the Appellate Division to “independently assess all the proof” and “to serve, in effect, as a second jury” … . * * *

This Court reviews a weight of the evidence determination to assess whether the “order and writings of the intermediate appellate court manifest a lack of application of [its] review power” … . “[W]e cannot review a weight of the evidence challenge unless the intermediate appellate court manifestly failed to consider the issue or did so using an incorrect legal principle” … . We have never required the Appellate Division to “manifest its weight of evidence review power by writing in all criminal cases” … . Indeed, the Appellate Division “could have summarily affirmed without explicitly addressing the merits of defendant’s challenge to the weight of the evidence” … . People v Baque, 2024 NY Slip Op 05244, CtApp 10-24-22

Practice Point: This decision is a rare Court-of-Appeals review of an appellate division’s weight-of-the-evidence affirmance of a conviction based entirely on circumstantial evidence. The unique criteria for review by the Court of Appeals is explained.

 

DEFENDANT, PRETENDING TO BE SOMEONE ELSE, TOOK DELIVERY OF TIRES AND FALSELY SIGNED THE INVOICE; THE DEFENDANT WAS PROPERLY SENTENCED TO CONSECUTIVE TERMS OF INCARCERATION FOR LARCENY AND FORGERY; THE CRITERIA FOR CONSECUTIVE AND CONCURRENT SENTENCES EXPLAINED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined consecutive sentences were properly imposed for defendant’s larceny and forgery convictions:

… [T]he Exxpress Tire Delivery Company received a telephone order from Basil Ford Truck Center by someone identifying themselves as Joe Basil Jr., for next-day delivery. The following day, … the driver called a number … for “Joe Junior” for additional delivery instructions. The man who answered the call told the driver to take the tires to a business adjacent to the Basil Ford Truck Center. When the driver arrived at the location he saw “a truck with a trailer” parked “on the side of the building” with a man standing next to it. He asked the man—who he identified in-court as defendant—”if he was taking the tires for delivery,” to which the man responded “yes.” Defendant … told the driver that he was an employee of the Basil family. The two loaded the tires onto the trailer and the driver then presented defendant with the tire invoice, which defendant falsely signed: “Joe Basil.” * * *

… [I]n accordance with section 70.25 (2), “sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” … .

Under the first prong, “where the actus reus is a single inseparable act that violates more than one statute, [a] single punishment must be imposed” … . * * * Here … defendant accomplished the taking once the driver loaded the tires onto defendant’s trailer, which preceded defendant falsely signing the invoice … .

As to the second prong, courts “first look to the statutory definitions of the crimes at issue to discern whether the actus reus elements overlap” … . * * *

… [B]ecause forgery is not the exclusive means to accomplish a larceny by false pretenses, forgery is not “a necessary component” of the larceny count “in the legislative classification and definitional sense” … . … [U]nder this prong, we do not consider “the act-specific circumstances and proof of a crime” … . People v McGovern, 2024 NY Slip Op 05242, CtApp 10-24-24

Practice Point: Consult this decision for an explanation of the criteria for consecutive versus concurrent sentences where two crimes stem from closely related actions—here taking possession of property by false pretenses (larceny) and then falsely signing an invoice for the property(forgery).

 

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THE FAILURE TO MOVE TO SUPPRESS THE EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT ON THE GROUND THE POLICE VIOLATED THE “KNOCK AND ANNOUNCE” RULE DOES NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE ISSUE IS “NOVEL” (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, over a three-judge concurrence which argued the case should have been disposed of based on the inadequacy of the record and not on the merits, determined the “single error” attributed to defense counsel did not amount to ineffective assistance. Defendant argued a motion to suppress should have been made on the ground the police violated the knock-and-announce rule when executing the warrant:

We have recognized that a single error in an otherwise competent performance may be sufficiently “egregious and prejudicial as to deprive a defendant of [the] constitutional right to effective legal representation” … . To “rise to that level,” however, defense counsel’s omission “must typically involve an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and it must be evident that the decision to forgo the contention could not have been grounded in a legitimate trial strategy” … .

That standard is not satisfied if the “omitted argument was not so compelling that a failure to make it amounted to ineffective assistance of counsel” … . We have stated that counsel is not ineffective when the success of the argument the defendant claims should have been made by counsel “depended on the resolution of novel questions” … , or when, at the time of the defendant’s trial, “there was no clear appellate authority” supporting the argument the defendant claims that counsel should have made … .

The United States Supreme Court has held that a violation of the knock-and-announce rule by police when executing a search warrant does not require the application of the exclusionary rule under the Federal Constitution (see generally Hudson v Michigan, 547 US 586 [2006]). Defendant acknowledges that no New York appellate decision has decided to the contrary, either by distinguishing Hudson, on the basis of the New York Constitution, or otherwise. Indeed, defendant concedes that the issue is novel. We need not and do not resolve the merits of that question on this appeal. We merely hold that the issue was not so clear-cut and dispositive that no reasonable defense attorney would have failed to assert it, and therefore “defendant’s claim of ineffective assistance must fail” … . People v Hayward, 2024 NY Slip Op 05243, CtApp 10-22-24

Practice Point: A single error by defense counsel may rise to the level of ineffective assistance, but not, as here, where the issue defense counsel failed to raise is deemed “novel.”

 

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THE PROVISION OF THE MENTAL HYGIENE LAW WHICH ALLOWS TEMPORARY CONFINEMENT OF SEX OFFENDERS WITHOUT THE OFFENDER’S PARTICIPATION AT THE PROBABLE CAUSE STAGE IS CONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, affirming the Appellate Division, over a two-judge dissenting opinion, determined the procedure under the Mental Hygiene Law which allows the temporary confinement of sex offenders without the offender’s participation at the probable cause stage is constitutional:

This appeal requires us to examine whether certain provisions of Mental Hygiene Law § 10.11 (d) (4) satisfy procedural due process. Those provisions govern the procedure for the temporary confinement of sex offenders adjudicated to have “mental abnormalities”—but released from confinement to strict and intensive supervision and treatment (SIST)—pending a final SIST revocation hearing. * * *

This appeal concerns the initial step in the process for revoking SIST. “If a parole officer has reasonable cause to believe that” a respondent has violated a SIST condition, or if an “evaluation or report by a treating professional indicat[es] that the person may be a dangerous sex offender requiring confinement,” a parole officer may take the violator into custody and transport them to a facility for a psychiatric evaluation, which must take place within five days … . Once the violator is taken into custody, DOCCS must “promptly” notify the Attorney General and the Mental Hygiene Legal Service (MHLS), which provides legal representation to article 10 respondents … . The Attorney General may then petition for confinement or a petition to modify the conditions within five days …  The petition must “be served promptly on the respondent and [MHLS],” and the court must appoint legal counsel to represent the respondent and provide counsel with a copy of the psychiatric evaluation … . If the Attorney General files a petition seeking confinement,

“then the court shall promptly review the petition and, based on the allegations in the petition and any accompanying papers, determine whether there is probable cause to believe that the respondent is a dangerous sex offender requiring confinement. Upon the finding of probable cause, the respondent may be retained in a local correctional facility or a secure treatment facility pending the conclusion of the proceeding” … .

* * * “The respondent shall not be released pending the completion of the hearing” … . People ex rel. Neville v Toulon, 2024 NY Slip Op 05178, CtApp 10-22-24

Practice Point: The provision of the Mental Hygiene Law which allows temporary confinement of sex offenders without the offender’s participation at the probable cause stage is constitutional.

 

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HUSBAND WAS IN THE NAVY FOR ABOUT NINE YEARS BEFOR MARRIAGE; DURING THE MARRIAGE HE LEFT THE NAVY AND JOINED THE FOREIGN SERVICE WHICH ALLOWED HIM TO “PURCHASE” CREDITS FOR HIS TIME IN THE NAVY TO AUGMENT HIS FOREIGN SERVICE PENSION; THE PORTION OF HIS PENSION ATTRIBUTABLE TO THE PRE-MARRIAGE SERVICE IN THE NAVY IS MARITAL, NOT SEPARATE, PROPERTY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined the portion of the husband’s pension which stemmed from his pre-marriage service in the Navy was marital, not separate, property:

In this case, a couple used marital funds to augment the husband’s Foreign Service pension so that it included credit for his pre-marriage military service. The issue is whether the portion of the pension related to the pre-marriage military service is separate or marital property. We hold that the portion of the Foreign Service pension related to credit for that service is entirely marital property because marital funds were used to transform the credits into pension rights. * * *

John Szypula joined the Navy in 1987, when he was 22. He and Meredith Szypula were married nine years later. Two years later, in 1998, Mr. Szypula left the Navy. In general, members of the armed services become entitled to retirement pay only after they complete twenty years of service. When Mr. Szypula left the Navy, he was not entitled to military retirement benefits.

From 1998 to 2012, Mr. Szypula worked in the private sector. In 2012, he joined the Foreign Service and enrolled in the Foreign Service Pension System (FSPS). Veterans who join the Foreign Service—like Mr. Szypula—may add their years of military service to their FSPS pensions by making additional contributions for the years they served in the military. Mr. and Ms. Szypula took advantage of this benefit. From 2012 to 2018, a portion of Mr. Szypula’s earnings was withheld to enhance his Foreign Service pension by “buying back” his eleven years of Navy service, at a total cost of $9,158.00. As a result of those payments and his eleven years of Navy service, Mr. Szypula’s FSPS pension will vest sooner and be worth more. Szypula v Szypula, 2024 NY Slip Op 05177, CtApp 10-22-24

 

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