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DEFENDANT’S “PROMOTING A SEXUAL PERFORMANCE BY A CHILD” CONVICTION WAS REVERSED ON THE LAW; THE DEFENDANT CANNOT BE CLASSIFIED AS A “SEX OFFENDER” (FOURTH DEPT).

The Fourth Department noted that if the underlying conviction has been reversed and the indictment dismissed it can no longer be the basis for classifying the defendant as a “sex offender:”

While this appeal was pending, this Court reversed the judgment convicting defendant of eight counts of promoting a sexual performance by a child as a sexually motivated felony (Penal Law §§ 130.91, 263.15) on the law and dismissed the indictment … .

A “sex offender” includes a person who is convicted of an offense described in Correction Law § 168-a (2) or (3). However “[a]ny [such] conviction set aside pursuant to law is not a conviction” for purposes of the statute (§ 168-a [1]; see § 168-d [1] [a]). Inasmuch as defendant’s judgment of conviction has been “set aside pursuant to law” (§ 168-a [1]) by reversal of this Court …, defendant does not qualify as a “sex offender” within the meaning of SORA, and the risk level determination must be vacated … . People v Congdon, 2023 NY Slip Op 02228, Fourth Dept 4-28-23

Practice Point: Where a sexual-offense conviction has been reversed on the law and the indictment dismissed, the defendant cannot be classified as a “sex offender.”

 

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JOINT LEGAL CUSTODY TO MOTHER AND FATHER AND PRIMARY CUSTODY TO FATHER WERE NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this divorce proceeding, determined the award of joint legal custody and the award of primary custody to father were not supported by the evidence. The hostility between father and mother and father’s violent behavior were not given proper consideration:

“Entrusting the custody of young children to their parents jointly, especially where the shared responsibility and control includes alternating physical custody, is insupportable when parents are severely antagonistic and embattled” … . In determining whether joint legal custody is appropriate, “the question of fault is beside the point” … . …

… [T]he court failed to give adequate weight to the father’s extensive history of domestic violence or his continued minimization of his actions and denial of the nature and extent of his mental illness. The evidence established that the father engaged in multiple acts of domestic violence against the mother in the presence of the children. Despite having been convicted of and serving a jail sentence for one of those acts, the father continued to deny that he had ever engaged in domestic violence. Further, although the father has been diagnosed, by more than one provider, with a bipolar disorder, he testified at trial that he could not recall ever having been given such a diagnosis. Both the mother and the father testified that the father had discontinued the use of his prescribed medications without discussing it with his treatment providers. The father had also threatened to commit suicide on more than one occasion, prompting calls to the police that resulted in brief hospitalizations for which the father blamed the mother. At the time of the trial, the evidence established that the father’s current medication regimen was inappropriate for Bipolar Disorder treatment and that the father was not currently engaged in any regular mental health counseling. Crofoot v Crofoot, 2023 NY Slip Op 02205, Fourth Dept 4-28-23

Practice Point: The hostility between mother and father and father’s violent behavior and mental illness were not given appropriate weight when the court awarded joint legal custody to mother and father and primary custody to father.

 

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​ THE JUDGE SHOULD NOT HAVE DETERMINED THE TRIAL WITNESS’S IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY FOR THE FIRST TIME AT TRIAL; A MIDTRIAL RODRIGUEZ HEARING SHOULD HAVE BEEN HELD; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing to determine whether a witness’s identification of defendant was confirmatory, noted that the judge should not have found the identification confirmatory for the first time based on the witness’s trial testimony. A Rodriguez hearing should have been when the issue came up at trial:

The witness in question disclosed on cross-examination at trial that he had identified defendant as the assailant in a photograph shown to him by the police. The People’s CPL 710.30 notice did not reference this identification. Defense counsel thus asked the court to strike the witness’s testimony on the ground of lack of notice, but the court, relying on the witness’s trial testimony, ruled that the People were not required to give notice because the identification was confirmatory. That was error. As the Court of Appeals has made clear, “prior familiarity should not be resolved at trial in the first instance” (Rodriguez, 79 NY2d at 452 …), and, in any event, the witness’s trial testimony was not sufficient to establish as a matter of law that the identification was confirmatory.

Although the witness testified that he knew defendant because he had seen him “a couple of times” at the barber shop, and that the two had each other’s phone numbers, he also testified that he did not know defendant well, that he knew him only by a common nickname, and that they never spoke again after the assault. A midtrial Rodriguez hearing would have allowed defense counsel to flesh out the extent of the relationship between the two men, thereby allowing the court to make a more informed determination as to whether the pretrial identification of defendant was confirmatory as a matter of law. People v Alcaraz-ubiles, 2023 NY Slip Op 01637, Fourth Dept 3-24-23

Practice Point: If the defense is not given notice of a witness’s identification of the defendant, the witness cannot testify about the identification unless it was “confirmatory,” I.e., based on knowing the defendant. Here the judge should not have found the identification confirmatory based on the witness’s trial testimony. A midtrial Rodriguez hearing should have been held. The matter was remitted.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF IMPLIED CONTRACT AND DEFENDANT’S MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint stated a cause of action for breach of implied contract and the defendant’s motion to dismiss the breach of implied cause of action based on documentary evidence should not have been granted:

“Whether an implied-in-fact contract was formed and, if so, the extent of its terms, involves factual issues regarding the intent of the parties and the surrounding circumstances” … . Contrary to the court’s determination, whether plaintiff “can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” … and, here, plaintiff’s allegations sufficiently state a cause of action for breach of an implied contract arising from an implicit agreement to extend the brokerage contract … . Similarly, the complaint sufficiently alleges the elements of a claim for unjust enrichment … .

… “A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff’s] claim[s]” … . Although contracts are among the types of documentary evidence that may be considered for purposes of CPLR 3211 (a) (1) … , we conclude that the contract submitted by defendants in support of their motion failed to “utterly refute . . . plaintiff’s allegations [that the contract was implicitly extended] or conclusively establish a defense as a matter of law” … . University Hill Realty, Ltd v Akl, 2023 NY Slip Op 01634, Fourth Dept 3-24-23

Practice Point: Here the breach of implied contract cause of action should not have been dismissed.

Practice Point: The motion to dismiss the breach of  implied contract cause of action based on documentary evidence should not have been granted. Although a contract can be the type of evidence which qualifies as “documentary evidence” here the contract did not utterly refute the allegation the contract was extended.

 

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THE TOWN BOARD’S FAILURE TO PROVIDE ITS REASONS FOR ITS RULING IN THIS VARIANCE PROCEEDING AND THE BOARD’S FAILURE TO MAKE ADEQUATE FINDINGS OF FACT REQUIRED THE APPELLATE COURT TO REMIT THE MATTER FOR THE SECOND TIME UNDER THREAT OF SANCTIONS (FOURTH DEPT).

The Fourth Department, sending the matter back to the Town Board for the second time in this variance proceeding, determined the board’s failure make adequate findings of fact and explain the reasons for its decision precluded appellate review:

Generally, “[f]indings of fact which show the actual grounds of a decision are necessary for an intelligent judicial review of a quasi-judicial or administrative determination” … . Here, we conclude that the Town Board has once again precluded intelligent judicial review of its determination inasmuch as its “purported findings of fact are speculative and mere conclusions and contain very little[, if any,] factual matter” … . The Town Board “must do more than merely restate the terms of the applicable ordinance” and the procedural history preceding and subsequent to the determination; rather, the Town Board must set forth “findings of the facts essential to its conclusion” to grant the variance in the first instance—i.e., the determination that is the subject of the appeal … . Given that the Town Board has “failed to articulate the reasons for its determination and failed to set forth …, we continue to hold the case, reserve decision and remit the matter to the Town Board to properly set forth the factual basis for its determination within 30 days of the date of entry of the order of this Court. We remind the parties that “[a]n attorney or party who fails to comply with a[n] . . . order of th[is C]ourt . . . shall be subject to such sanction as [we] may impose” upon motion or our own initiative after the attorney or party has a reasonable opportunity to be heard (22 NYCRR 1250.1 [h]). Matter of Guttman v Covert Town Bd., 2023 NY Slip Op 01632, Fourth Dept 3-24-23

Practice Point: An appellate court cannot review a Town Board’s ruling in a variance proceeding when the board does not explain its ruling and make findings of fact. Here the matter was sent back to the board for its reasons and findings of fact for a second time, under threat of sanctions.

 

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THE PROSECUTOR DID NOT INSTRUCT THE GRAND JURY ON ALL OF THE ELEMENTS OF PROMOTING A SEXUAL PERFORMANCE OF A CHILD AND IMPROPERLY CROSS-EXAMINED THE DEFENDANT IN THE GRAND JURY PROCEEDINGS; ALTHOUGH DEFENDANT WAS PROPERLY CONVICTED, THE INDICTMENT WAS DISMISSED WITHOUT PREJUDICE (FOURTH DEPT).

The Fourth Department, reversing the conviction after trial and dismissing the indictment (without prejudice), determined the prosecutor did not properly instruct the grand jury on the law and improperly cross-examined the defendant in the grand jury proceedings:

… [T]he prosecutor failed to instruct the grand jury, pursuant to the holding in People v Kent (19 NY3d 290 [2012]), that some “affirmative act” is required to prove the crime, and that “viewing computer images of a sexual performance by a child on a computer does not by itself constitute promotion of such images” (CJI2d[NY] Penal Law § 263.15). Although it is well established that a grand jury “need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law” … , we conclude under the circumstances of this case that the deficiencies in the prosecutor’s charge impaired the integrity of the grand jury proceeding and gave rise to the possibility of prejudice. We further conclude that the potential for prejudice was increased by the prosecutor’s cross-examination of defendant during the grand jury presentation in a manner that was “calculated to unfairly create a distinct implication that [defendant] was lying” … . People v Congdon, 2023 NY Slip Op 01622, Fourth Dept 3-24-23

Practice Point: The grand jury should have been instructed that some affirmative act in addition to simply viewing child pornography of a computer is required for the offense of promoting the sexual performance of a child.

Practice Point: The prosecutor increased the prejudice resulting from the improper instruction on the law by improperly cross-examining the defendant in the grand jury proceeding to imply that the defendant was lying.

Practice Point: Even though the defendant was properly convicted at trial, the flaws in the grand jury proceeding required dismissal of the indictment.

 

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AS CHARGED IN THIS CASE, CRIMINAL TRESPASS THIRD IS NOT A LESSER INCLUDED OFFENSE OF BURGLARY THIRD AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED (FOURTH DEPT).

The Fourth Department, reversing defendant’s criminal trespass third conviction, determined the judge should not have instructed the jury on that offense as a lesser included offense of burglary third degree:

“To establish that a count is a lesser included offense in accordance with CPL 1.20 (37), a [party] must establish ‘that it is theoretically impossible to commit the greater crime without at the same time committing the lesser’ ” … . As charged here, “[a] person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property (a) which is fenced or otherwise enclosed in a manner designed to exclude intruders” (Penal Law § 140.10 [a]). The plain language of that statute “clearly requires that both buildings and real property be fenced or otherwise enclosed in order to increase the level of culpability from trespass . . . to criminal trespass in the third degree” … . Inasmuch as that requirement is not an element of burglary in the third degree (see § 140.20), it is theoretically possible to commit burglary in the third degree without committing criminal trespass in the third degree under section 140.10 (a), and thus “a violation of that section cannot qualify as a lesser included offense of third-degree burglary” … . People v Newman, 2023 NY Slip Op 01621, Fourth Dept 3-24-23

Practice Point: As charged in this case, trespass third is not a lesser included offense of burglary third.

 

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​ A WAIVER OF APPEAL NOT MENTIONED UNTIL SENTENCING IN INVALID; MATTER REMITTED FOR A DECISION ON DEFENDANT’S MOTION TO REDACT STATEMENTS MADE WITHOUT COUNSEL FROM THE PREPLEA INVESTIGATION REPORT (FOURTH DEPT).

The Fourth Department, remitting the matter, determined (1) the waiver of the right to appeal was invalid because the waiver was not mentioned until sentencing, after defendant pled guilty, and (2) the judge never decided defendant’s request to have certain statements, made without counsel, redacted from the preplea investigation report:

A waiver of the right to appeal is not effective where, as here, it is not mentioned until sentencing, after defendant pleaded guilty … . …

Defendant … contends that Supreme Court erred in failing to redact from the preplea investigation report statements that defendant made during the preplea investigation interview, because those statements were made without the presence of counsel. … [D]efendant preserved the issue for our review by moving to redact the statements from the preplea investigation report … . The court stated that it was reserving decision, but there is no indication in the record that the court ever issued a decision. It is well settled that a court’s failure to rule on a motion cannot be deemed a denial thereof . We therefore hold the case, reserve decision, and remit the matter to Supreme Court to determine defendant’s motion.  People v Wallace, 2023 NY Slip Op 01616, Fourth Dept 3-24-23

Practice Point: A waiver of appeal not mentioned until sentencing is invalid.

Practice Point: When a judge fails to decide a motion, here a motion to redact statements from the preplea investigation report, the appellate court cannot consider the motion to have been denied and must remit for a decision.

 

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THE PLEA-BARGAINED SENTENCE WAS BELOW THE STATUTORY MINIMUM, MATTER REMITTED FOR RESENTENCING OR WITHDRAWAL OF THE PLEA AGREEMENT (FOURTH DEPT). ​

​The Fourth Department remitted the matter for resentencing because the sentence imposed was below the statutory minimum:

… [T]he sentence promised to defendant as part of his guilty plea and imposed upon him at sentencing, i.e., 8 years to life imprisonment, is illegal because it fell below the statutory minimum (see Penal Law §§ 70.08 [3] [b]; 265.03). Contrary to defendant’s contention, however, the remedy at this stage is not to vacate his guilty plea, but to remit the matter to County Court … . On remittal, the court will have the discretion to either, if possible, ” ‘resentence defendant in a manner that ensures that he receives the benefit of his sentencing bargain or permit both parties the opportunity to withdraw from the agreement’ ” … . People v Mcdowell, 2023 NY Slip Op 01606, Fourth Dept 3-24-23

Practice Point: Here the plea-bargained sentence was below the statutory minimum. The matter was remitted for resentencing (if possible) or withdrawal of the plea agreement.

 

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THE IMPOSITION OF TWO CONSECUTIVE PERIODS OF POSTRELEASE SUPERVISION WAS ILLEGAL (FOURTH DEPT).

The Fourth Department determined consecutive periods of post release supervision should not have been imposed. Although the issue was not raised on appeal, an appellate court cannot allow an illegal sentence to stand:

… [T]he court erred in imposing consecutive periods of postrelease supervision. Penal Law § 70.45 (5) (c) requires that when a person is subject to two or more periods of postrelease supervision, those periods merge with and are satisfied by the service of the period having the longest unexpired time to run … . Because we cannot allow an illegal sentence to stand … , we modify the judgment accordingly…. . People v Koeberle, 2023 NY Slip Op 01605, Fourth Dept 3-24-23

Practice Point: Here the imposition of two consecutive periods of postrelease supervision was illegal. The issue was not raised on appeal, but an appellate court cannot allow an illegal sentence to stand.

 

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