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THE DETERIORATION OF THE RELATIONSHIP BETWEEN FATHER AND MOTHER WAS A SUFFICIENT CHANGE IN CIRCUMSTANCES TO WARRANT AN INQUIRY RE: FATHER’S PETITION FOR A MODIFICATION OF CUSTODY; AFTER CONSIDERING THE MERITS, THE APPELLATE COURT AWARDED SOLE CUSTODY TO FATHER (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father demonstrated a change in circumstance (deterioration of the relationship with mother, inability to communicate) sufficient to warrant an inquiry into whether the joint custody arrangement should be modified, and the record supported awarding father sole custody:

… [T]he court had previously awarded joint custody to the parties on the basis that communications between them had “improved and the two were working together more than ever before, the results of which were positive for [the subject child].” However, the evidence at the hearing established that, after the initial custody award was entered, the parties reverted to ” ‘an acrimonious relationship and are not able to communicate effectively with respect to the needs and activities of their child[ ], and it is well settled that joint custody is not feasible under those circumstances’ ” … . …

… [W]e conclude that it is in the child’s best interests to award the father sole custody. Although the parties have shared alternating week custody since the entry of the prior custody order, the evidence at the hearing established that the father “provided a more stable environment for the child and was better able to nurture the child” … . The evidence further established that the mother made a concerted effort to interfere with the father’s contact with the child by, inter alia, disparaging him to educational and medical professionals, which raises a strong probability that the mother ” ‘is unfit to act as custodial parent’ ” … and warrants the grant of sole custody to the father…. . Matter of Johnson v Johnson, 2022 NY Slip Op 05651, Fourth Dept 10-7-22

Practice Point: A deterioration of the relationship between father and mother was a sufficient change in circumstances to warrant an inquiry re: father’s petition for a modification of custody. The record was sufficient for the appellate court to determined sole custody should be awarded to father.

 

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FATHER WAS NOT SERVED WITH THE ORDER OF FACT-FINDING AND DISPOSITION IN THE MANNER PRESCRIBED BY FAMILY COURT ACT 1113 (FATHER WAS SERVED BY EMAIL) AND THEREFORE THE 30-DAY APPEAL DEADLINE DID NOT APPLY; FATHER’S STRIKING THE 14-YEAR-OLD CHILD ONCE DURING A MULTI-PERSON MELEE AFTER THE CHILD BROKE THE WINDOW OF FATHER’S CAR WITH A ROCK DID NOT CONSTITUTE NEGLECT (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined: (1) Family Court did not follow the statutory procedure for serving father with the order of fact-finding and disposition and, therefore, father’s appeal was timely; and (2) father’s striking the child once during a multi-person melee, after the child threw a rock at father’s car, did not constitute neglect:

… “[T]here is no evidence in the record that the father was served with the order of fact-finding and disposition by a party or the child’s attorney, that he received the order in court, or that the Family Court mailed the order to the father” … . Instead, despite using a form order that provided typewritten check boxes for the two methods of service by the court mentioned in the statute (i.e., in court or by mail) … , the court here crossed out the word “mailed” and edited the form to indicate that the order was emailed to, among others, the father’s attorney. The statute, however, does not provide for service by the court through email or any other electronic means … . … Inasmuch as the father was served the order by the court via email, which is not a method provided for in Family Court Act § 1113, and there is no indication that he was served by any of the methods authorized by the statute, we conclude that the time to take an appeal did not begin to run and that it cannot be said that the father’s appeal is untimely … .* * *

 … [W]e conclude that, “[g]iven the age of the subject child, the provocation, and the dynamics of the incident, the [father’s] act against [the child] did not constitute neglect” … . The record establishes that, during the course of a multi-person melee that included the 15-year-old sister beating up the 18-year-old daughter of the father’s girlfriend, the 14-year-old child threw a rock at the vehicle causing the window to break, to which provocation the father instantly reacted by striking the child once either in the face or the back of the head … . Petitioner presented no evidence that the child sustained any injury or required medical treatment as a result of the single strike by the father during the altercation, and the police who investigated the incident did not file any charges … . Matter of Grayson S. (Thomas S.), 2022 NY Slip Op 05649, Fourth Dept 10-7-22

Practice Point: Here father was served with the order of fact-finding and disposition by email, a method not prescribed by Family Court Act 1113. Therefore the 30-day time limit for bringing an appeal did not apply and father’s appeal was timely. Father struck the 14-year-old child once during a multi-person melee after the child broke the window of father’s car with a rock. Father’s striking the child, which did not cause injury, did not constitute neglect.

 

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A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED UPON MATTERS IN THE RECORD WHICH HAVE BEEN PRESERVED FOR APPEAL; A MOTION TO SET ASIDE A VERDICT PURSUANT TO CPL 330.30 (2) CAN BE BASED UPON JUROR MISCONDUCT OF WHICH THE DEFENDANT WAS NOT AWARE PRIOR TO THE VERDICT; BUT HERE THE DEFENSE WAS AWARE OF THE ALLEGED MISCONDUCT PRIOR TO THE VERDICT AND DID NOT OBJECT (FOURTH DEPT).

The Fourth Department explained that a motion to set aside a verdict pursuant to CPL 330.30 (1) or (2) cannot be based upon an issue the defense could have addressed (but did not) prior to the verdict. Although CPL 330.30 (2) allows a motion to set aside the verdict based upon juror conduct of which the defendant was not aware prior to the verdict, here the defense was aware of the alleged juror conduct:

” ‘A trial court’s authority to set aside a verdict under CPL 330.30 (1) is limited to grounds which, if raised on appeal, would require reversal as a matter of law . . . Accordingly, only a claim of error that is properly preserved for appellate review may serve as the basis to set aside the verdict’ ” … . Here, despite being afforded an opportunity to object or seek further relief when the court brought the issue to the parties’ attention during deliberations, defendant did not do so and thus failed to preserve his claim … .. The court therefore properly denied without a hearing the motion insofar as it was based on CPL 330.30 (1) because defendant’s unpreserved argument “did not furnish a proper predicate for setting aside the verdict” … .

A trial court is also authorized to set aside a verdict on the ground that “during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict” (CPL 330.30 [2] …). Here, the record establishes that the alleged juror misconduct “was addressed by the court and counsel on the record at the time of trial” and that defendant thus “had knowledge of the matter prior to the verdict” … . We therefore conclude that the court properly denied without a hearing the motion insofar as it was based on CPL 330.30 (2) because “the juror misconduct alleged was known to . . . defendant and . . . defendant had the opportunity to act on the information but failed to do so prior to the verdict” … .People v Kenney, 2022 NY Slip Op 05645, Fourth Dept 10-7-22

Practice Point: A motion to set aside the verdict pursuant to CPL 330.30 (1) must be based upon preserved errors which could be raised on appeal. A motion to set aside the verdict pursuant to CPL 330.30 (2) may be based upon juror misconduct of which the defendant was not aware prior to the verdict. Here, however, the defense was aware of the conduct and did not object.

 

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A MOTION TO SET ASIDE A JURY VERDICT PURSUANT TO CPL 330.30 (1) MUST BE BASED UPON MATTERS IN THE RECORD; I.E., ISSUES THAT CAN BE RAISED ON APPEAL; HERE THE MOTION WAS BASED ON MATTERS OUTSIDE THE RECORD AND SHOULD HAVE BEEN DENIED ON THAT GROUND (FOURTH DEPT).

The Fourth Department, reversing County Court’s granting of defendant’s CPL 330.30 (1) motion to set aside the jury verdict, determined the motion was improperly based upon matters outside the record. A CPL 330.30 (1) motion must be based upon issues which can be raised on appeal:

Pursuant to CPL 330.30 (1), following the issuance of a verdict and before sentencing a court may set aside a verdict on “[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.” Defendant’s motion to set aside the verdict pursuant to CPL 330.30 (1) was procedurally improper because it was “premised on matters outside the existing trial record, and CPL 330.30 (1) did not permit defendant[] to expand the record to include matters that did not ‘appear[ ] in the record’ prior to the filing of the motion[]” … . We therefore reverse the order, deny the motion, and reinstate the verdict inasmuch as defendant’s claim was not reviewable pursuant to CPL 330.30 (1) … . People v Allen, 2022 NY Slip Op 05647, Fourth Dept 10-7-22

Practice Point: A motion to set aside a jury verdict pursuant to CPL 330.30 (1) must be based upon matters which are in the record; i.e., issues which can be raised on appeal. Here the motion was based on matters outside the record and should have been denied on that ground.

 

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THE DEFENDANT, WHO WAS BEING TREATED AT THE HOSPITAL, WAS IN CUSTODY AND HAD NOT BEEN INFORMED OF HIS MIRANDA RIGHTS; THE DEFENDANT CALLED A POLICE OFFICER OVER AND SAID “I’M BEAT UP;” THE OFFICER THEN ASKED “WHAT HAPPENED?”; DEFENDANT’S ANSWER WAS NOT SPONTANEOUS AND SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined statements made by the defendant to a police officer while he was being treated at the hospital should have been suppressed. Although the initial statement “I’m beat up” was spontaneous, the statements made after the police officer asked “what happened?” were not spontaneous and were made while the defendant was in custody:

… [I]t is undisputed that defendant was in police custody at the time he made the statements and that no one read defendant his Miranda warnings prior to defendant making the statements.

The officer testified at the suppression hearing that defendant “called [the officer] over” to his bed and said “I’m beat up,” after which the officer asked defendant “what happened.” Defendant then explained the circumstances surrounding how he allegedly came into possession of a weapon he was not legally authorized to possess. We conclude that defendant’s initial statement, “I’m beat up,” was not subject to suppression because it was ” ‘spontaneous and not the result of inducement, provocation, encouragement or acquiescence’ ” … . The court, however, erred in refusing to suppress the remainder of his statements, which were made in response to the officer’s question that was intended to elicit a response, and thus those statements cannot be said to have been “genuine[ly] spontane[ous],” i.e., they were not ” ‘spontaneous in the literal sense of that word as having been made without apparent external cause’ ” … . People v Corey, 2022 NY Slip Op 05646, Fourth Dept 10-7-22

Practice Point: Although defendant’s initial statement to the police office “I;m beat up” was spontaneous and not subject to suppression, defendant’s answer to the officer’s question “what happened?” was not spontaneous and should have been suppressed.

 

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THERE WERE QUESTIONS OF FACT WHETHER THE SNOW PLOW WAS “ENGAGED IN HIGHWAY WORK” AT THE TIME OF THE TRAFFIC ACCIDENT; THEREFORE THERE WERE QUESTIONS OF FACT CONCERNING WHETHER THE HIGHER “RECKLESS DISREGARD” STANDARD OF CARE APPLIED; THE STATE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined the state’s motion for summary judgment in this snow-plow traffic-accident case should not have been granted because there were questions of fact concerning whether the higher “reckless disregard” standard of care for snow plows was applicable. Although the “reckless disregard” standard may still apply where, as here, the snow plow is raised, the snow plow must be salting the road or otherwise “working its run” at the time of the accident:

Vehicle and Traffic Law § 1103 (b) “exempts from the rules of the road all vehicles, including [snowplows], which are ‘actually engaged in work on a highway’ . . . , and imposes on such vehicles a recklessness standard of care” … . The exemption “applies only when such work is in fact being performed at the time of the accident” … , which includes a snowplow engaged in plowing or salting a road … . Although the exemption does “not apply if the snowplow . . . [is] merely traveling from one route to another route” … , a snowplow may be “engaged in work even if the plow blade [is] up at the time of the accident and no salting [is] occurring” when the snowplow is nevertheless “working [its] ‘run’ or ‘beat’ at the time of the accident” … .

… [W]e conclude that the State failed to establish as a matter of law that the snowplow was “actually engaged in work on a highway” at the time of the accident (Vehicle and Traffic Law § 1103 [b] …). Lynch-Miller v State of New York, 2022 NY Slip Op 05640, Fourth Dept 10-7-22

Practice Point: Here the snow plow was raised when the traffic accident occurred. There were questions of fact about whether the snow plow was salting the road or otherwise working its run when at the time. Therefore, there were questions of fact about whether the higher “reckless disregard” standard of care for vehicles engaged in highway work applied.

 

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PURSUANT TO THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA), HEALTH CARE WORKERS WHO TREATED COVID-19 PATIENTS WERE IMMUNE FROM CIVIL LIABILITY; THE EDTPA HAS SINCE BEEN REPEALED; THE REPEAL SHOULD NOT BE APPLIED RETROACTIVELY; THE CAUSES OF ACTION ALLEGING IMPROPER TREATMENT FOR COVID-19 DURING THE TIME THE EDTPA WAS IN EFFECT MUST BE DISMISSED (FOURTH DEPT).

The Fourth Department determined the repeal of the COVID-19-related Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law sections 3080-3082) should not be applied retroactively. Therefore, the immunity from civil liability provided by the EDTPA for health care workers who treated COVID-19 patients was in effect when the causes of action in the complaint arose. The complaint, which alleged plaintiff nursing-home resident was not properly tested and treated for COVID-19, was dismissed:

We … conclude that applying the repeal of EDTPA to the allegations in the complaint would have retroactive effect “by impairing rights [defendants] possessed in the past, increasing their liability for past conduct and imposing new duties with respect to transactions already completed” … . “Because the [repeal of EDTPA], if applied to past conduct, would impact substantive rights and have retroactive effect, the presumption against retroactivity is triggered” … . Ruth v Elderwood At Amherst, 2022 NY Slip Op 05637, Fourth Dept 10-7-22

Practice Point: The immunity from civil liability provided to health care workers who treated COVID-19 patients while the Emergency or Disaster Treatment Protection Act (EDTPA) was in effect remains despite the subsequent repeal of the EDTPA. In other words, the repeal of the EDTPA is not given retroactive effect. The decision includes an exhaustive discussion and analysis of the retroactive application of statutes.

 

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REFUSING TO SUBMIT TO A DWI BREATH TEST IS NOT AN OFFENSE (FOURTH DEPT).

The Fourth Department, reversing the conviction, noted that refusing to submit to a DWI field screening test (Alco-Sensor breath test) is not an offense:

We agree with defendant … that his “refusal to submit to a [field screening device] did not establish a cognizable offense” (People v Alim, 204 AD3d 1418, 1419 [4th Dept 2022]  … ; see People v Bembry, 199 AD3d 1340, 1342 [4th Dept 2021] …). We therefore modify the judgment by reversing that part convicting defendant of count seven of the indictment and dismissing that count. People v Shirley, 2022 NY Slip Op 05631, Fourth Dept 10-7-22

Practice Point: Refusing to submit to a DWI breath test is not an offense. The “conviction” was reversed that the indictment count was dismissed.

 

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APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE A MOTION ALERTING THE APPELLATE COURT TO A COURT OF APPEALS DECISION WHICH CAME DOWN AFTER THE BRIEFS WERE FILED BUT BEFORE THE APPELLATE RULING; MOTION FOR WRIT OF ERROR CORAM NOBIS GRANTED (FOURTH DEPT).

The Fourth Department granted the defendant’s motion for writ of error coram nobis on the ground appellate counsel was ineffective. Although the Court of Appeals decision mandating that sentencing judges consider youthful offender status came down after the briefs were filed, appellate counsel should have made a motion to raise the issue:

Defendant contends that he was denied effective assistance of appellate counsel because counsel failed to raise an issue on direct appeal, specifically, whether Supreme Court failed to determine whether defendant should be afforded youthful offender status. Upon our review of the motion papers and under the circumstances presented here, we conclude that appellate counsel’s representation was not constitutionally adequate. “As held by the Court of Appeals in People v Rudolph (21 NY3d 497, 501 [2013]), CPL 720.20 (1) requires ‘that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain’ ” …  Here, there is nothing in the record demonstrating that the court considered whether to adjudicate defendant a youthful offender, even though defendant, who was convicted of manslaughter in the first degree (Penal Law § 125.20 [1]) was presumably eligible … . Although the Court of Appeals decided Rudolph after appellate counsel filed the briefs on appeal and shortly before this Court affirmed defendant’s judgment on appeal, the standard of meaningful representation required appellate counsel to, after Rudolph was decided, seek to file an appropriate motion in this Court in order to raise the argument that Rudolph requires that the sentence must be vacated and the matter remitted for determination of defendant’s youthful offender status …  The order of July 5, 2013 is vacated and this Court will consider the appeal de novo … . Defendant is directed to file and serve his records and brief with this Court on or before January 23, 2023. People v Nathan, 2022 NY Slip Op 05479, Fourth Dept 9-30-22

Practice Point: A motion for writ of error coram nobis is a post-appeal tool for arguing appellate counsel was ineffective. Here a Court of Appeals decision requiring sentencing judges to consider youthful offender status even if not raised by the defendant came down after the briefs were filed but before the ruling. Appellate counsel was ineffective for failing to make a motion alerting the appellate court to the new law.

 

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THE JUDGE INCORRECTLY PARAPHRASED THE JURY NOTE; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s condition, determined that the judge did not adequately inform counsel of the contents of a jury note:

The record reflects that the court received the note from the jury and properly marked it as a court exhibit. The jury note stated, in relevant part, “[p]lease go over manslaughter vs murder 2 elements of the charges from your instructions” … . The court did not read the note verbatim and the record does not reflect that the court showed the note to the parties. Rather, the record reflects that the court informed the parties that the jury wanted the court to “go over the instructions for manslaughter and [m]urder in the [s]econd [d]egree” … . We conclude that by improperly paraphrasing the jury note, the court failed to give meaningful notice of the note … . Contrary to the People’s contention, the difference between the content of the note and the court’s words altered the meaning of the jury’s request … . People v Zenon, 2022 NY Slip Op 05446, Fourth Dept 9-30-22

Practice Point: Here the judge paraphrased the jury note in a way which altered its meaning. Conviction reversed.

 

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