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THE THREE-STEP BATSON PROCEDURE WAS NOT FOLLOWED WHEN THE DEFENDANT OBJECTED TO THE PEOPLE’S PEREMPTORY CHALLENGE TO AN AFRICAN-AMERICAN PROSPECTIVE JUROR, MATTER REMITTED FOR FURTHER PROCEEDINGS TO SATISFY BATSON (FOURTH DEPT).

The Fourth Department, remitting the matter, determined the three-step Batson procedure was not followed when the defense objected to the People’s peremptory challenge to an African-American prospective juror:

After defendant made a prima facie showing of discrimination in step one, the prosecutor offered a race-neutral explanation for the peremptory challenge … , namely, that the prospective juror had a sister who was incarcerated for assaulting someone with a gun and that the prospective juror said that the criminal justice system could have treated her sister better. When defense counsel attempted to respond, the court interrupted him and stated, “I ruled. There is no Batson issue.” Defense counsel timely objected to the court’s ruling. In our view, defense counsel should have been “given the opportunity to argue that the prosecutor’s explanation[ was] a pretext for discrimination” … . * * *

… [W]hen it interrupted defense counsel, “the court improperly rushed and compressed the Batson inquiry,” precluding defendant from meeting “his burden of establishing an equal protection violation” … . To be distinguished are situations in which defense counsel does not make “any attempt to respond or protest[ ]” …  or in which the court implicitly rejects the pretext argument by letting the challenge stand after hearing a defense counsel’s arguments concerning pretext … . People v Singleton, 2021 NY Slip Op 01638, Fourth Dept 3-19-21

 

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STATEMENTS MADE AFTER DEFENDANT ASSERTED HIS RIGHT TO REMAIN SILENT SHOULD HAVE BEEN SUPPRESSED, BUT THE ERROR WAS HARMLESS; CRIMINAL POSSESSION OF A WEAPON WAS A CONTINUING CRIME AND SHOULD HAVE BEEN CHARGED AS A SINGLE COUNT, NOT FOUR COUNTS; AN OBJECTION OR A MOTION FOR A MISTRIAL IS NECESSARY TO PRESERVE AN ERROR AFTER A CURATIVE INSTRUCTION HAS BEEN GIVEN (FOURTH DEPT).

The Fourth Department determined statements made after defendant unequivocally asserted his right to remain silent should have been suppressed, but the error was harmless. In addition the Fourth Department dismissed three counts of criminal possession of a weapon because all four counts related to the uninterrupted possession of a single weapon at different times. The court also noted that if the trial court gives a curative instruction after an objection, another objection or a motion for a mistrial is necessary to preserve the issue for appeal:

… [D]efendant told the police three times that he did not wish to speak to them. We conclude that the court’s determination that defendant did not unequivocally invoke his right to remain silent is supported by the record with respect to the first such instance, because in that instance he “did not clearly communicate a desire to cease all questioning indefinitely” … , “especially in light of his continued participation in the conversation” … . We further conclude, however, that the remainder of the court’s determination is not supported by the record, inasmuch as, twice more during the questioning, “defendant said that he did not want to talk about [the crimes], thus unequivocally invoking his right to remain silent” … . Consequently, the court was required to suppress the statements that defendant made after invoking his right to remain silent for the second time. * * *

Defendant … contends in his main brief that the court erred in refusing to dismiss various counts of the indictment charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) inasmuch as the indictment charged him with multiple counts of that crime based on his commission of a singular continuing offense. We agree. “An indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . Here, the indictment charged defendant with four separate counts of criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) for the uninterrupted possession of a single weapon at different times. We conclude that such possession “constituted a single offense for which he could be prosecuted only once” … . Consequently, we affirm that part of the judgment convicting defendant of criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) in count 17 of the indictment, and we modify the judgment by reversing those parts convicting him of that crime under counts 8, 11, and 16 of the indictment and dismissing those counts of the indictment. People v Johnston, 2021 NY Slip Op 01632, Fourth Dept 3-19-21

 

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THE CONTEMPT APPLICATIONS IN THIS NEGLECT/CUSTODY PROCEEDING WERE JURISDICTIONALLY DEFECTIVE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the contempt charges in this neglect/custody proceeding were jurisdictionally defective:

We… conclude that the court erred in granting in part plaintiff’s contempt applications because they were jurisdictionally defective under Judiciary Law § 756. Section 756 provides that a contempt “application shall contain on its face a notice that the purpose of the hearing is to punish the accused for a contempt of court, and that such punishment may consist of fine or imprisonment, or both, according to law together with the following legend . . . : WARNING: YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT.” It is well settled that the failure to include the notice or the warning language of Judiciary Law § 756 constitutes a jurisdictional defect, requiring the court to deny the application … .

Here, it is undisputed that plaintiff’s initial and amended contempt applications did not include, verbatim, the required warning language of Judiciary Law § 756. Importantly, plaintiff’s contempt applications omitted the language warning defendant that his “failure to appear in court may result in [his] immediate . . . imprisonment for contempt of court” (id.). Thus, because plaintiff’s contempt applications failed to include the required warning language, they did not strictly comply with Judiciary Law § 756, rendering them jurisdictionally defective … . Rennert v Rennert, 2021 NY Slip Op 01630, Fourth Dept 3-19-21

 

THE GENETIC MARKER TESTING TO ESTABLISH PATERNITY SHOULD NOT HAVE BEEN ORDERED IN THE ABSENCE OF A HEARING TO DETERMINE THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department. reversing Family Court, determined genetic marker testing to establish paternity should not have ordered without holding a hearing to determine if the testing is in the best interests of the child:

We agree with the mother that the court erred in ordering genetic marker testing without first holding a hearing to determine whether testing was in the best interests of the child. It is undisputed that, at the time of the child’s birth, respondents were married to one another, and respondents alleged that they had access to each other during the relevant time frame such that the presumption of legitimacy would apply. Although the court has the authority to order genetic marker and DNA testing in order to establish paternity, “[n]o such test shall be ordered . . . upon a written finding by the court that it is not in the best interests of the child on the basis of . . . the presumption of legitimacy of a child born to a married woman” … . On this record, “[t]here was insufficient evidence before the court to determine the child’s best interests,” and we thus conclude that, before ordering the genetic marker test, the court should have conducted a hearing to determine whether it was in the best interests of the child to do so, based on the presumption of legitimacy … . Matter of Kirk M.B. v Rachel S., 2021 NY Slip Op 01602, Fourth Dept 3-19-21

 

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THE PROOF OF CONSTRUCTIVE POSSESION OF WEAPONS WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department reversed defendant’s convictions for criminal use of a firearm and criminal possession of weapon because the proof of constructive possession was legally insufficient:

… [T]he evidence is legally insufficient to support her conviction of the counts of criminal use of a firearm in the first degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree, and we therefore modify the judgment accordingly. Those counts were based on defendant’s constructive possession of a rifle that was found in the house after the police entered. The People failed to establish that defendant “exercised dominion or control over [the rifle] by a sufficient level of control over the area in which [it was] found” to establish that she had constructive possession of it … . People v Lora, 2021 NY Slip Op 01597, Fourth Dept 3-19-21

 

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FAILURE TO TIMELY FILE THE OBJECTIONS TO THE SUPPORT MAGISTRATE’S DETERMINATION DID NOT WARRANT DISMISSAL OF THE OBJECTIONS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined that the failure to time file proof of service of respondent’s objections to the determination of the Support Magistrate did not warrant dismissal of the objections:

Family Court Act § 439 (e) provides that a party filing objections to the determination of the Support Magistrate must serve those objections upon the opposing party, and that proof of service “shall be filed with the court at the time of filing of objections.” Here, the record indicates that respondent timely filed his objections and served a copy of those objections upon petitioner on the same day, but respondent failed to file proof of service with Family Court until two days later.

Under the particular circumstances of this case, we substitute our discretion for that of Family Court and conclude that dismissal of respondent’s objections is not warranted … . Although respondent failed to comply with the statutory deadline for filing proof of service, ” ‘[s]trict adherence to this deadline is not required,’ ” and courts have ” ‘discretion to overlook a minor failure to comply with the statutory requirement’ ” … . Here, there is no dispute that petitioner was not prejudiced by the late filing inasmuch as she was served with a copy of respondent’s objections within the statutory time period (see Family Ct Act § 439 [e]). Indeed, the record shows that petitioner filed a rebuttal to respondent’s objections. Matter of Sigourney v Santaro, 2021 NY Slip Op 01591, Fourth Dept 3-19-21

 

COUNTY COURT DID NOT FOLLOW THE PROPER PROCEDURE FOR DETERMINING WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitted the mater for a determination whether defendant is eligible for youthful offender status:

Because defendant was convicted of an armed felony offense … , he is ineligible to receive a youthful offender adjudication unless the court determines that one of two mitigating factors is present … . If the court, in its discretion, determines that neither of the mitigating factors is present and states the reason for its determination on the record, then no further determination on the youthful offender application is required … . If, however, the court determines that one or more of those mitigating factors are present, and that defendant is therefore an eligible youth, it must then determine whether defendant is a youthful offender … .

Here, the court did not follow the procedure set forth in Middlebrooks [25 NY3d 516], inasmuch as it made no on-the-record determination of defendant’s eligibility for a youthful offender adjudication at sentencing … . People v Reed, 2021 NY Slip Op 01590, Fourth Dept 3-19-21

 

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PETITIONER DID NOT DEMONSTRATE THE NEGLECT PETITION WAS PROPERLY MAILED TO MOTHER AND MOTHER PRESENTED EVIDENCE REBUTTING THE PROCESS SERVER’S AFFIDAVIT; A HEARING ON WHETHER MOTHER WAS PROPERLY SERVED IS REQUIRED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined a hearing on whether mother was properly served with the neglect petition was necessary:

… [P]etitioner failed in the first instance to establish that the documents were mailed to the mother’s ” ‘last known address’ ” inasmuch as “[t]he affidavit of service says that the [papers] were mailed [by prepaid, first class mail] . . . , without identifying th[e] address” to which they were mailed … . In any event, even assuming, arguendo, that the process server’s affidavit was sufficient to create the presumption of valid service, we conclude that the mother’s submissions were sufficient to rebut that presumption.

The mother’s attorney submitted an affidavit from his legal assistant establishing that the person who accepted service mistakenly thought the papers were for his daughter, who shared the same first name as the mother. That person also informed the legal assistant that the mother had never resided at that address and that the mother’s father, with whom petitioner believed the mother was residing, “had moved out of the home months earlier.” We thus conclude that the mother rebutted any presumption that she was properly served at her “actual place of business, dwelling place or usual place of abode so as to satisfy the requirements of CPLR 308 (2) [or (4)]” … . Additionally, we note that petitioner’s own submissions in the application for an order of substituted service raise a question whether the mother ever resided at the address listed in the affidavit of service inasmuch as that address was not among the numerous identified addresses for her. Matter of William A. (Jessica F.), 2021 NY Slip Op 01580, Fourth Dept 3-19-21

 

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PLAINTIFF, WHO PURCHASED THE PROPERTY, SUED THE PRIOR OWNER IN NEGLIGENCE FOR DAMAGES STEMMING FROM PLAINTIFF’S EXPOSURE TO CHEMICAL CONTAMINATION ON THE PROPERTY; LIABILITY FOR A DANGEROUS CONDITION ON PROPERTY GENERALLY CEASES UPON TRANSFER OF THE PROPERTY; THE NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supeme Court, determined plaintiff’s negligence cause of action seeking damages for exposure to contaminants on the land plaintiff purchased from defendant city should have been dismissed. A property owner’s liability for a dangerous condition ceases upon the transfer of the property:

We … agree with defendant that the court erred in denying the motion with respect to the negligence cause of action, and we therefore further modify the order accordingly. That cause of action is based on allegations that plaintiff was injured due to a dangerous condition on the parcel of property that defendant sold to plaintiffs, i.e., chemical contamination, to which plaintiff was exposed after the sale. It is well settled that “[o]ne’s liability in negligence for the condition of land ceases when the premises pass out of one’s control before injury results. Such is the general rule” … . Thus, under that general rule, defendant’s liability for negligence based on a dangerous condition on the property ended when it sold the parcel to plaintiffs … , and “liability may be imposed upon defendant only if the allegedly dangerous condition . . . existed at the time [it] relinquished possession and control of the premises ‘and the new owner has not had a reasonable time to discover the condition, if it was unknown, and to remedy the condition once it is known’ ” … .

Here, defendant met its burden on the motion of establishing that any injury allegedly sustained by plaintiff was caused by exposure after defendant sold the property. In response, “plaintiff[s have] offered nothing to show that [they, as] the new owner[s,] did not have adequate time to discover and remedy such defects” … . Powers v City of Geneva, 2021 NY Slip Op 01684, Fourth Dept 3-19-21

 

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FATHER’S PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT MAKING A DETERMINATION ON THE MERITS, MATTER REMITTED; THE USUAL PROOF REQUIREMENTS FOR AWARDING CUSTODY TO A NONPARENT DO NOT APPLY TO A TEMPORARY PLACEMENT WITH A NONPARENT (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined father’s petition for modification of custody should not have been dismissed as moot without making a determination of the merits. The court noted that the usual requirements for awarding custody to a nonparent did not apply to the maternal aunt in this case because she did not petition for custody and the children were merely placed with her temporarily:

The father initially filed a petition for modification of custody and visitation against the mother, seeking primary residential custody of their three children. Petitioner Genesee County Department of Social Services then commenced a neglect proceeding against the mother, and the mother consented to the entry of orders finding the subject children to be neglected children. Family Court held a joint hearing regarding the neglect petition and the father’s custody petition … , after which the court placed the children with their maternal aunt with the mother’s consent but over the father’s objection, and dismissed the father’s custody petition as moot.

… [W]e agree with the father that the court erred in dismissing his petition for modification of custody and visitation as moot without making a determination on the merits of his petition pursuant to Family Court Act article 6 … . We further agree with the father that, ” ‘[a]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ ” … . Nevertheless, on the facts of this case, we conclude that the maternal aunt did not have the burden of making a showing of extraordinary circumstances inasmuch as she did not file a petition in this matter and was not awarded custody of the children, but rather the children were placed with her for the pendency of the article 10 proceeding pursuant to Family Court Act § 1017 … . Matter of Michael J.M. v Lisa M.H., 2021 NY Slip Op 01573, Fourth Dept 3-19-21

 

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