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ALTHOUGH SECONDARY EVIDENCE (HEARSAY TESTIMONY) AND EXTRINSIC DOCUMENTARY EVIDENCE ARE NOT ADMISSIBLE FOR COLLATERAL MATTERS LIKE IMPEACHING CREDIBILITY, SUCH EVIDENCE IS ADMISSIBLE WHEN IT IS RELEVANT TO A CORE ISSUE; HERE THE CONTENTS OF A NOTE PRESENTED TO A BANK EMPLOYEE WAS RELEVANT TO THE ‘THREATENED USE OF FORCE ‘ ELEMENT OF ROBBERY (FOURTH DEPT).

The Fourth Department, reversing defendant’s robbery conviction and ordering a new trial on that count, determined the defendant should have been allowed to present a witness to demonstrate the note he presented to the bank employee did not threaten the use of force (an element of the robbery charge). The Fourth Department noted that secondary evidence (hearsay testimony) and extrinsic documentary evidence, which is prohibited for collateral issues, may be admissible when the evidence is relevant to a core issue:

“It is well established that the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness’ answers concerning collateral matters solely for the purpose of impeaching that witness’ credibility” … . That rule, however, “has no application where the issue to which the evidence relates is material in the sense that it is relevant to the very issues that the jury must decide” … . “Where the truth of the matter asserted in the proffered inconsistent statement is relevant to a core factual issue of a case, its relevancy is not restricted to the issue of credibility and its probative value is not dependent on the inconsistent statement. Under such circumstances, the right to present a defense may encompass[ ] the right to place before the [trier of fact] secondary forms of evidence, such as hearsay’ ” … . Here, defendant sought to call a witness whose testimony related to the content of the note defendant presented to the bank employee in the first incident. Defendant specifically sought to establish that the note he presented contained language that, according to defendant, did not threaten the immediate use of force, contrary to the testimony of the bank employee who received it. Although a threat of immediate use of force may be implicit and does not require the use of any specific words … , the use of threatening language is nevertheless a factor for the jury to consider when determining whether the defendant presented such a threat … . Inasmuch as the content of the note was relevant to whether defendant, either explicitly or implicitly, threatened the use of force, we conclude that the proposed testimony pertained to a noncollateral issue and that the court should have allowed the proposed witness to testify … . People v Snow, 2020 NY Slip Op 04024, Fourth Dept 7-17-20

 

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FAMILY COURT SHOULD NOT HAVE AWARDED CUSTODY OF THE CHILDREN TO A NONPARENT WITHOUT FIRST MAKING A FINDING WHETHER EXTRAORDINARY CIRCUMSTANCES EXISTED; THE ISSUE WAS NOT PRESERVED, APPEAL HEARD IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court did not make the required initial finding of extraordinary circumstances before awarding custody of the children to a nonparent. Although the issue was not preserved, it was heard in the interest of justice:

” [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 . . . The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child’ ” … . That rule ” applies even if there is an existing order of custody concerning that child unless there is a prior determination that extraordinary circumstances exist’ ” … . A prior consent order does not by itself constitute a judicial finding or an admission of extraordinary circumstances … . There is no indication in the record that the court previously made a determination of extraordinary circumstances … . Matter of Byler v Byler, 2020 NY Slip Op 04025, Fourth Dept 7-17-20

 

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THE INITIAL PROSECUTOR IN DEFENDANT’S CASE BECAME THE TRIAL JUDGE’S LAW CLERK; DEFENDANT WAS NOT INFORMED AND WAIVED HIS RIGHT TO A JURY TRIAL; THE WAIVER WAS NOT ‘KNOWINGLY’ AND ‘INTELLIGENTLY’ MADE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction after a bench trial should have been granted. The initial prosecutor in defendant’s case became the trial judge’s law clerk. Defendant was never informed and waived his right to a jury trial. Defendant argued he would not have waived a jury trial had he known the former prosecutor was the trial judge’s law clerk:

The evidence at the hearing established that the prosecutor who appeared for over six months on the People’s behalf during the preliminary proceedings in this case was subsequently appointed to serve as the trial court’s confidential law clerk. When the law clerk brought that conflict to the trial court’s attention, the trial court appropriately screened the law clerk off from any participation in this case. When defendant sought to waive his right to a jury trial and to be tried by the court alone, however, the trial court—which had recognized the conflict and had already taken steps to mitigate it—failed to inform defendant that its law clerk had previously prosecuted defendant in this case. Moreover, although defense counsel was aware of the law clerk’s prior role as prosecutor, it is undisputed that defense counsel failed to inform defendant of that fact. Defense counsel subsequently admitted that, had he recalled the fact that the prosecutor had become the trial court’s law clerk, he would have advised defendant to retain his right to a jury trial. Additionally, defendant testified at the posttrial hearing that he would not have waived his right to a jury trial had he been aware of the fact that his former prosecutor was now serving as the trial court’s law clerk. Contrary to the motion court’s determination, defendant’s testimony in that regard was not incredible. Indeed, defendant identified rational, case-specific reasons why he distrusted the fairness of the law clerk.

Under the unique circumstances of this case, we conclude that defendant’s waiver of his right to a jury trial, which was made when he was the only participant in the waiver proceeding who was ignorant of the fact that his former prosecutor had become the trial judge’s legal advisor, was not tendered “knowingly and understandingly” and was not “based on an intelligent, informed judgment” … . People v Mineccia, 2020 NY Slip Op 04028, Fourth Dept 7-17-20

 

COUNTY COURT MISAPPREHENDED THE LAW WHEN IT AFFIRMED TOWN COURT’S ORDER TO EUTHANIZE RESPONDENT’S DOG; MATTER REMITTED TO TOWN COURT (FOURTH DEPT).

The Fourth Department, reversing County Court and remitting the matter to Town Court, determined County Court misapprehended the applicable law in affirming Town Court’s finding that respondent’s dog (Brady) is a dangerous dog and directing the dog be euthanized pursuant to the Agricultural and Markets Law:

… [T]he court repeatedly misstated the applicable law. Before the hearing commenced, the court stated that, if it determined Brady was a dangerous dog, the court had only “two options”— euthanasia or permanent confinement. After the hearing, before delivering its decision from the bench, the court stated that it “can” order euthanasia “upon a finding the dog is dangerous.” Those statements are subtly different, and both are in error. As discussed above, mere dangerousness does not empower the court to order euthanasia or permanent confinement, which may be imposed only upon the establishment of an aggravating circumstance. Even where an aggravating circumstance is established, euthanasia and permanent confinement are not the court’s only options (see Agriculture and Markets Law § 123 [2], [3]). As a result of its mistaken understanding of the applicable law, the court ordered euthanasia without determining whether petitioner had established the existence of an aggravating circumstance and without considering other available relief.

We therefore modify County Court’s order by vacating that part affirming the order of the Justice Court insofar as it directed that respondent’s dog be euthanized, and we remit the matter to the Justice Court for a determination whether petitioner established the existence of an aggravating circumstance and for the imposition of remedial measures as permitted by statute and “as deemed appropriate under the circumstances” (Agriculture and Markets Law § 123 [2]). Matter of Town of Ogden v LaVilla, 2020 NY Slip Op 04032, Fourth Dept 7-17-20

 

DEFENDANT’S SENTENCE FOR MANSLAUGHTER REDUCED BASED UPON DEFENDANT’S BACKGROUND, REMORSE AND LACK OF A CRIMINAL HISTORY (FOURTH DEPT).

The Fourth Department reduced defendant’s sentence for manslaughter based upon his background, remorse, and lack of a criminal history:

… [T]he 24-year determinate sentence is unduly harsh and severe considering, inter alia, defendant’s background, genuine show of remorse, and lack of prior criminal history. Thus, we modify the judgment as a matter of discretion in the interest of justice by reducing the sentence to a determinate term of imprisonment of 19 years and five years of postrelease supervision, which falls within the sentence range negotiated by the parties … . People v Jeffords, 2020 NY Slip Op 04037, Fourth Dept 7-17-20

 

THE PROSPECTIVE JUROR AND A PROSECUTION WITNESS WERE FRIENDS; DEFENDANT’S FOR CAUSE CHALLENGE TO THE JUROR SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that defendant’s for cause challenge to a juror should have been granted. The juror and a prosecution witness were friends:

… [T]he prospective juror gave “some indication of bias” … by stating that her friendship with a prosecution witness “might” “affect [her] ability to be fair and impartial in this case” and that serving as a juror “might be awkward” in light of that friendship … .

Contrary to the court’s determination, the prospective juror did not give an unequivocal assurance of impartiality by merely stating, during follow-up questioning, that she would not feel compelled to “answer” to the witness for her verdict. The fact that a prospective juror would not feel compelled to answer to another person for their verdict does not necessarily mean that such prospective juror “can be fair” … . Indeed, a person could be unable to judge a case impartially while simultaneously being confident that he or she would not have to answer for the verdict to any other person. Thus, the prospective juror’s assurances that she would not feel compelled to answer to the witness for her verdict does not constitute the unequivocal assurance of impartiality required by law. People v Cobb, 2020 NY Slip Op 04055, Fourth Dept 7-17-20

 

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ALTHOUGH THE ‘LEGALLY INSUFFICIENT EVIDENCE’ ISSUE WAS NOT PRESERVED BY THE MOTION FOR A TRIAL ORDER OF DISMISSAL, THE APPEAL WAS HEARD IN THE INTEREST OF JUSTICE; THE ELEMENT OF RECKLESSNESS IN THIS ASSAULT CASE WAS LEGALLY INSUFFICIENT; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s assault convictions and dismissing the indictment, determined the evidence of recklessness was legally insufficient. Although the issue was not preserved by the motion for a trial order of dismissal, the appeal was heard in the interest of justice. The facts were not described:

Defendant failed to preserve that contention for our review, however, “because [her] motion for a trial order of dismissal was not specifically directed at the ground[] advanced on appeal’ ” … . We nevertheless exercise our power to review her challenge as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

We agree with defendant that the conviction of both counts of assault in the third degree is not supported by legally sufficient evidence … . The evidence submitted by the People is insufficient to establish that defendant acted recklessly, “i.e., that [s]he perceived a substantial and unjustifiable risk of [injury] and that [her] conscious disregard of that risk constituted a gross deviation from the standard of conduct that a reasonable person would observe in that situation” … . People v Romeiser, 2020 NY Slip Op 04054, Fourth Dept 7-17-20

 

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THE BURGLARY PLEA COLLOQUY DID NOT INDICATE DEFENDANT INTENDED TO COMMIT A CRIME OTHER THAN TRESPASS IN THE PREMISES; THEREFORE THE COLLOQUY NEGATED AN ESSENTIAL ELEMENT OF THE CRIME; PRESERVATION FOR APPEAL IS NOT REQUIRED FOR THIS GENRE OF ERROR (FOURTH DEPT).

The Fourth Department vacated defendant’s plea to burglary because the colloquy negated an essential element of the offense. The court noted that this type of error does not require preservation for appeal. The intent to commit burglary includes the intent to commit a crime in the premises other than trespass:

Although we agree with the People that defendant failed to preserve his contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground … , this case nevertheless falls within the rare exception to the preservation requirement … . Where a defendant’s recitation of the facts “negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that [the] defendant understands the nature of the charge and that the plea is intelligently entered” … .

Here, defendant’s factual recitation negated at least one element of the crime. Specifically, defendant negated the “intent to commit a crime therein” element of burglary (Penal Law § 140.25) because his factual recitation contradicted any allegation that “he intended to commit a crime in the apartment other than his trespass” ( … see § 140.25). Criminal trespass in the second degree “cannot itself be used as the sole predicate crime in the intent to commit a crime therein’ element of burglary” … . The court thus had a duty to conduct an inquiry to ensure that defendant understood the nature of the crime … . Instead, the court stated, “I just want to make sure . . . [that] you still accept [the plea deal], because you have an absolute right to go to trial . . . I think you understand . . . [t]hat your defense of you going to the bathroom may be a difficult sell to a jury.” Because that minimal inquiry by the court did not clarify the nature of the crime in order to ensure that the plea was intelligently entered, the court erred in accepting the guilty plea. People v Hernandez, 2020 NY Slip Op 04049, Fourth Dept 7-17-20

 

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FIREFIGHTER WAS SOLELY RESPONSIBLE FOR THE DELAY IN HOLDING HIS DISCIPLINARY HEARING AND THEREFORE WAS NOT ENTITLED TO BACK PAY FOR THE PRE-HEARING PERIOD OF SUSPENSION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court. determined a firefighter was not entitled to back pay for the suspension period while awaiting a disciplinary hearing because the firefighter (or his attorney) was responsible for the delay:

Civil Service Law § 75 provides that a public employee may be suspended without pay for a maximum of 30 days while awaiting a hearing on disciplinary charges (see § 75 [3]). Although an employee suspended without pay for a longer period under those circumstances is generally entitled to receive back pay, he or she waives any claim to back pay if a delay in the disciplinary hearing beyond the 30-day maximum is “occasioned by” his or her own conduct … .

We agree with respondents that petitioner is not entitled to reinstatement or back pay because petitioner was solely responsible for the delay. Petitioner’s attorney is an experienced practitioner familiar with Civil Rights Law § 50-a. As such, petitioner’s attorney either knew or should have known that, in order to secure production of the [the disciplinary file of Kelly, another firefighter], section 50-a required that he obtain either Kelly’s consent or a court order. Indeed, respondents publicly announced in multiple press releases several months before the arbitration that Kelly’s file was confidential pursuant to section 50-a. Moreover, petitioner’s attorney had specific knowledge of the contents of the file because he was involved professionally in the investigation of Kelly’s misconduct. Based on that experience and knowledge, petitioner could have taken steps to obtain the file long before the arbitration commenced, such as asking Kelly for his consent or commencing a proceeding to obtain a court order. Because petitioner failed to take any action, “the entire period of delay in holding the hearing resulted from his dilatory tactics” … . Matter of Carcone v City of Utica, 2020 NY Slip Op 04103, Fourth Dept 7-17-20

 

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BECAUSE PETITIONER WAS REINSTATED IN HER JOB AND BACKPAY HAD BEEN PROVIDED FOR THE PERIOD OF WRONGFUL SUSPENSION BY THE TIME THE CONTEMPT HEARING WAS HELD, PETITIONER COULD NOT SHOW SHE HAD BEEN PREJUDICED BY ANY FAILURE TO COMPLY WITH THE RELEVANT ORDER; THEREFORE THE EMPLOYER SHOULD NOT HAVE HELD IN CONTEMPT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner’s employer (NYS Department of Transportation [DOT}]) should not have been held in contempt for the alleged failure to quickly restore petitioner to the payroll and provide backpay because DOT had fulfilled those directives by the time the contempt hearing was held:

… [W]e conclude that the court erred in granting that part of petitioner’s motion seeking to have the DOT respondents adjudged in contempt of the October 2015 judgment. “A finding of civil contempt must be supported by four elements: (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; (2) [i]t must appear, with reasonable certainty, that the order has been disobeyed; (3) the party to be held in contempt must have had knowledge of the court’s order, although it is not necessary that the order actually have been served upon the party; and (4) prejudice to the right of a party to the litigation must be demonstrated” … . A movant seeking a contempt order bears the burden of establishing the foregoing elements by clear and convincing evidence … . We review a court’s ruling on a contempt motion for an abuse of discretion … .

Here, we conclude that petitioner failed to show by clear and convincing evidence that the failure of the DOT respondents to immediately comply with the directives of the October 2015 judgment ” defeat[ed], impair[ed], impede[d] or prejudice[d]’ ” petitioner’s rights … . We are mindful that “[a]ny penalty imposed [for a civil contempt] is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court’s mandate or both” … . By the time the court conducted the hearing on petitioner’s contempt motion, it was undisputed that she had been restored to the payroll, was receiving payment, and had been awarded back pay for the time she was wrongly suspended without pay. Thus, the goals of civil contempt would not be furthered by granting petitioner’s motion absent any prejudice to her once the relevant DOT respondents complied with the directives of the October 2015 judgment and restored her to paid status. Matter of Mundell v New York State Dept. of Transp., 2020 NY Slip Op 04099, Fourth Dept 7-17-20

 

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