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AN ENTRY IN THE CASE SUMMARY ALONE IS NOT A SUFFICIENT BASIS FOR AN ASSESSMENT OF POINTS (FOURTH DEPT).

The Fourth Department, reducing defendant’s risk level, determined that an entry in the case summary alone is not sufficient to justify an assessment of points:

We agree with defendant that the People failed to prove by the requisite clear and convincing evidence that he had committed a continuing course of sexual misconduct, i.e., risk factor 4 on the risk assessment instrument (RAI) … . The sole evidence presented by the People in support of that risk factor was the case summary prepared by the Board of Examiners of Sex Offenders. At the SORA hearing, however, defendant specifically denied the allegation within the case summary that he engaged in a continuing course of sexual misconduct, and instead testified that he engaged in one instance only. Indeed, it is undisputed that defendant was charged with and pleaded guilty to one count of rape in the third degree … stemming from a specific instance of intercourse that occurred on one specified day. We conclude that “the case summary alone is not sufficient to satisfy the People’s burden of proving the risk level assessment by clear and convincing evidence where, as here, defendant contested the factual allegations related to [the] risk factor” … . People v Maund, 2020 NY Slip Op 02011, Fourth Dept 3-20-20

 

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NEW YORK PLAINTIFF, NORTH CAROLINA DEFENDANT, TORTS ALLEGEDLY OCCURRED IN GEORGIA; UNDER A CONFLICT OF LAWS ANALYSIS GEORGIA LAW CONTROLS (FOURTH DEPT).

The Fourth Department determined Supreme Court properly ruled that Georgia law controlled the action which alleged Bank of America’s employees or agents notarized documents with false signatures. The torts were alleged to have occurred in Georgia. Plaintiff was a domiciliary of New York and Bank of America was a domiciliary of North Carolina:

If the conflicting laws regulate conduct, the law of the place of the tort applies because of the “locus jurisdiction’s interests in protecting the reasonable expectations of the parties” and “the admonitory effect that applying its law will have on similar conduct in the future” … . Where [, as here], however, the conflicting laws relate to the allocation of losses, then “considerations of the State’s admonitory interest and party reliance are less important” … . Nevertheless, pursuant to the third rule set forth in Neumeier v Kuehner (31 NY2d 121, 128 [1972]), i.e., where the parties are domiciled in different states with conflicting laws, the law of the place of the tort normally applies, unless displacing it “will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants” … . We conclude that plaintiff “failed to establish that the exception applies to warrant a departure from the locus jurisdiction rule” … , and thus the third Neumeier rule warrants the application of the law of Georgia in this action … . Durham Commercial Capital Corp. v Arunachalam, 2020 NY Slip Op 02024, Fourth Dept 3-20-20

 

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BECAUSE DEFENDANT INVOKED HIS RIGHT TO COUNSEL WHEN HE WAS NOT IN CUSTODY HE COULD VALIDLY WITHDRAW HIS REQUEST WITHOUT THE PRESENCE OF COUNSEL (FOURTH DEPT).

The Fourth Department determined defendant invoked his right to counsel when he was not in custody and therefore defendant could validly withdraw his request for counsel without the presence of counsel:

The Court of Appeals has stated that a defendant who asserts his or her right to counsel while out of custody may later withdraw that assertion without an attorney present and speak to law enforcement agents … . A hearing court may infer that a defendant has withdrawn a request for counsel when the defendant’s conduct unambiguously establishes such a withdrawal, which requires consideration of all relevant factors, including “whether defendant was fully advised of his or her constitutional rights before invoking the right to counsel and subsequently waiving it, whether the defendant who has requested assistance earlier has initiated the further communication or conversation with the police . . . , and whether there has been a break in the interrogation after the defendant has asserted the need for counsel with a reasonable opportunity during the break for the suspect to contact an attorney” … . Here, defendant was repeatedly advised of his rights, including twice immediately before he resumed speaking with the police. Moreover, after an overnight break in questioning, defendant initiated the conversation with the police to inquire about taking a polygraph examination, and he provided his own transportation to the investigators’ office. Consequently, we conclude that the court properly determined that defendant withdrew his assertion of his right to counsel … . We reject defendant’s contention that a different result is required because he did not cause the break in the interrogation. The relevant consideration is not which party caused the break in the questioning, rather it is whether there was “a reasonable opportunity during the break for the suspect to contact an attorney” … , and in this case defendant had such an opportunity during the overnight break in questioning. People v Brown, 2020 NY Slip Op 01981, Fourth Dept 3-20-20

 

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JAIL IS NOT A ‘PUBLIC ACCOMMODATION’ WITHIN THE MEANING OF THE NYS HUMAN RIGHTS LAW; THE STATE DIVISION OF HUMAN RIGHTS THEREFORE DID NOT HAVE JURISDICTION TO HEAR PETITIONER’S ADMINISTRATIVE COMPLAINT ALLEGING UNLAWFUL DISCRIMINATION IN JAIL (FOURTH DEPT).

The Fourth Department determined jail is not a “public accommodation” within the meaning of the Human Rights Law. Therefore petitioner’s administrative complaint alleging unlawful discrimination in the jail was properly dismissed by the NYS Division of Human Rights (SDHR) for lack of jurisdiction:

SDHR has jurisdiction to, inter alia, investigate and adjudicate complaints of unlawful discrimination in the provision of any “public accommodation, resort or amusement” (Executive Law § 296 [2] [a]; see § 295 [6] … ). For purposes of the Human Rights Law, a “public accommodation, resort or amusement” offers ” conveniences and services to the public’ ” and is “generally open to all comers” … , and it defies logic to suggest that law enforcement is providing ” conveniences’ ” or ” services’ ” to those arrested and detained … . Nor is arrest and detention “open to all comers” in any sense … . Indeed, it well established that “prison facilities do not cater or offer [their] goods to the general public” … . To the contrary, arrest and detention is imposed upon a person by law enforcement and the criminal courts, not provided to those arrested and detained as a service for their benefit. The process of arresting and incarcerating a person is, “by its very nature,” a governmentally decreed “separat[ion of] the general public from the individuals who are compelled by our penal system to be confined” … .

In short, although we note SDHR’s concession at oral argument that governmental entities such as police agencies could provide public accommodations within the meaning of the Human Rights Law under certain circumstances, we join the consensus of courts nationwide in concluding that arrest and incarceration are “properly viewed as the antithesis of a . . . public accommodation’ ” … . Matter of LeTray v New York State Div. of Human Rights, 2020 NY Slip Op 01978, Fourth Dept 3-20-20

 

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SELF-SERVING AFFIDAVIT FROM DEFENDANT DID NOT REBUT THE PRESUMPTION OF THE VALIDITY OF THE SERVICE OF PROCESS (FOURTH DEPT).

The Fourth Department determined defendant did not rebut the presumption of valid service of process:

… [P]laintiff submitted, in addition to evidence establishing the default of defendant and “proof of the facts constituting the claim” (CPLR 3215 [f] … ), the affidavit of a process server, who averred that he served defendant by delivering a copy of the summons and complaint to the office of the Secretary of State pursuant to Business Corporation Law § 306 (b) (1), and an affidavit of additional mailing establishing that a copy of the summons and complaint was also sent to defendant’s mailing address pursuant to CPLR 3215 (g) (4). In opposition, defendant asserted that it was entitled under CPLR 317 to be relieved from its default in pleading, and defendant submitted an affidavit in which its president averred, insofar as relevant to the issue of service, that defendant had not received the summons and complaint prior to receipt of plaintiff’s initial notice of motion for a default judgment.

… [I]n order to be relieved of a default in pleading under CPLR 317, defendant was required to show, among other things, that it did not receive actual notice of the process in time to defend the action … . It is well settled that a “process server’s affidavit constitute[s] prima facie evidence of proper service on the Secretary of State” … , and thus defendant was required to rebut the presumption of proper service … . Here, the “self-serving affidavit [of defendant’s president], which merely denied receipt, is insufficient to rebut [that] presumption” … . Lechase Constr. Servs., LLC v JM Bus. Assoc. Corp., 2020 NY Slip Op 01977, Fourth Dept 3-20-20

 

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BECAUSE FATHER’S ATTORNEY APPEARED IN THE CUSTODY PROCEEDING FATHER WAS NOT IN DEFAULT AND THE ORDER WAS THEREFORE APPEALABLE (FOURTH DEPT).

The Fourth Department determined father was not in default because his attorney appeared. Therefore the custody order was appealable:

Petitioner father commenced this proceeding seeking to modify a prior order of custody that, inter alia, awarded sole legal and physical custody of the subject child to respondent mother. The father now appeals from an order that, inter alia, continued sole legal and physical custody of the subject child with the mother.

We agree with the father that Family Court erred in entering the order upon his default based on his failure to appear in court. The record establishes that the father “was represented by counsel, and we have previously determined that, [w]here a party fails to appear [in court on a scheduled date] but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded” … . Matter of Williams v Richardson, 2020 NY Slip Op 01975, Fourth Dept 3-20-20

 

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THE DEFENSE ATTORNEY HAD BEGUN WORKING FOR THE DISTRICT ATTORNEY’S OFFICE AT THE TIME DEFENDANT ENTERED HIS PLEA; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO COUNSEL; PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant was deprived of his right counsel because defense counsel had become employed by the district attorney’s office at the time of the plea:

It is well established that a criminal defendant’s right to counsel is violated when a defense attorney who actively participated in the preliminary stages of the defendant’s defense becomes employed as an assistant district attorney by the office that is prosecuting the defendant’s ongoing case … . In those circumstances, the defendant and the public are given “the unmistakable appearance of impropriety and [the situation] create[s] the continuing opportunity for abuse of confidences entrusted to the attorney during the [period] of his [or her] active representation of defendant” … . Disqualification is required when there is “the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight” … . “The rule is necessary to prevent situations in which [a] former client[] must depend on the good faith of [his or her] former [attorney] turned adversar[y] to protect and honor confidences shared during the now extinct relationship. In those situations the risk of abuse is obvious” … .

Here, we conclude that defendant’s right to counsel was violated … . The People concede that the attorney who had represented defendant with respect to the misdemeanor charges was employed by the District Attorney’s Office at the time defendant entered into the plea agreement that resolved those misdemeanor charges as well as the felony charges. Thus, on this record, we conclude that there is an “appearance of impropriety and . . . risk of prejudice attendant on abuse of confidence” … , and defendant should not have been required to “depend on the good faith of [his] former [attorney] turned adversar[y] to protect and honor confidences shared during the now extinct relationship” … . People v Sears, 2020 NY Slip Op 01974, Fourth Dept 3-20-20

 

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BECAUSE THE ISSUE WAS NOT PRESERVED, THE APPELLATE COURT DID NOT ADDRESS DEFENDANT’S OBJECTION TO THE TRIAL JUDGE’S PROHIBITING DEFENDANT FROM COMMUNICATING WITH HIS ATTORNEY DURING OVERNIGHT RECESSES WHEN DEFENDANT WAS ON THE STAND (FOURTH DEPT).

The Fourth Department determined the defendant did not preserve for appeal his objection to the trial judge’s prohibiting defendant from communicating with his lawyer during overnight recesses when defendant was testifying. The legitimacy of the objection was not addressed:

Defendant … contends in his main brief that the court committed reversible error by depriving him of the constitutional right to counsel when it prohibited him from communicating with defense counsel about his testimony during overnight recesses while defendant was in the midst of testifying in his defense. Defendant failed to preserve that contention for our review inasmuch as defense counsel was ” present and available to register a protest’ to [the] restriction on communication that would [have] provide[d] the court with an opportunity to rectify its error” but did not make a timely protest … . Under the circumstances of this case, we decline to exercise our power to review that contention as a matter of discretion in the interest of justice … . Contrary to defendant’s related contention in his main brief, we conclude under the circumstances of this case that defense counsel’s failure to timely object to the prohibition on communication was not so “egregious and prejudicial as to compromise . . . defendant’s right to a fair trial” … . People v Tetro, 2020 NY Slip Op 01973, Fourth Dept 3-20-20

 

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THERE IS NO LEGAL SUPPORT FOR A ‘TRI-PARENT’ ARRANGEMENT WHERE A FORMER SAME-SEX PARTNER OF MOTHER, MOTHER AND FATHER SHARE VISITATION AND CUSTODY OF THE CHILD (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Centra, over a two-justice concurrence and a dissent, determined petitioner, the former same-sex partner of mother, did not have standing to seek custody and visitation of the child, despite mother’s support of the petition. The petitioner moved out of mother;s residence in 2010. Mother thereafter conceived a child with father. At first father wanted nothing to do with the child, but he has visited the child since 2014. Petitioner participated in the birth and naming of the child and assumed the role of a parent, but the romantic relationship with mother ended in 2012. Father opposed petitioner’s 2017 petition for custody and visitation. Mother did not want to terminate father’s rights. Family Court granted father’s motion to dismiss the petition. The Fourth Department affirmed finding no legal support for a “tri-parent” custody and visitation arrangement:

The wording of Domestic Relations Law § 70 (a) is clear and straightforward. It states that “either” parent may seek custody or visitation (id.). It is a well-settled principle of statutory construction that “[w]ords of ordinary import used in a statute are to be given their usual and commonly understood meaning” … . The common dictionary definition of “either” when used as an adjective has two senses, i.e., “being the one and the other of two” and “being the one or the other of two” … . In addition, when the Court of Appeals stated in Brooke S.B. that section 70 does not define the critical term “parent,” it added the following in a footnote: “We note that by the use of the term either,’ the plain language of Domestic Relations Law § 70 clearly limits a child to two parents, and no more than two, at any given time” (Brooke S.B., 28 NY3d at 18 n 3). In our view, the clear wording of section 70 (a), which was expressly recognized by the Court of Appeals, precludes any relief to petitioner here because there are already two parents: the mother and the father. Under section 70 (a), there simply can be no more. We are therefore in agreement with the Third Department’s recent decision determining that to allow three parents to “simultaneously have standing to seek custody . . . does not comport with the holding in Matter of Brooke S.B.” (Matter of Shanna O. v James P., 176 AD3d 1334, 1335 [3d Dept 2019]). Matter of Tomeka N.H. v Jesus R., 2020 NY Slip Op 02015, Fourth Dept 3-20-20

Similar issue and result in Matter of Wlock v King, 2020 NY Slip Op 02019, Fourth Dept 3-20-20

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, ASSESSED POINTS ON A THEORY NOT RAISED BY THE BOARD OF EXAMINERS OF SEX OFFENDERS OR THE PEOPLE; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge should not have, sua sponte, assessed points on a theory not raised by the Board of Examiners of Sex Offenders or the People:

… [D]efendant contends, and the People correctly concede, that County Court violated his right to due process by sua sponte assessing points on a theory not raised by the Board of Examiners of Sex Offenders or the People … . 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 … . Here, no allegations were made either in the risk assessment instrument (RAI) or by the People at the SORA hearing that defendant should be assessed 30 points under risk factor 3, and defendant learned of the assessment of the additional points under that risk factor for the first time when the court issued its decision … . …

The court stated that, if defendant were a presumptive level one risk, an upward departure to level two would be warranted based on certain aggravating factors stemming from the nature of the crimes. Because those factors were not presented as bases for departure in the RAI or by the People at the hearing, defendant was not afforded notice and a meaningful opportunity to respond to them … . People v Wilke, 2020 NY Slip Op 02002, Fourth Dept 3-20-20

 

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