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DECISION WHETHER TO ADMIT OR DENY ALLEGATIONS IN A PREDICATE FELONY STATEMENT IS RESERVED TO DEFENDANT PERSONALLY, NOT DEFENSE COUNSEL (FOURTH DEPT).

The Fourth Department noted that the decision whether to admit or deny the allegations in a predicate felony statement is reserved to the defendant personally, not defense counsel:

… [W]hether to admit or controvert the allegations in a predicate felony statement is a “fundamental” decision “comparable to how to plead and whether to waive a jury, take the stand or appeal,” and it is “therefore reserved to the accused” personally … . Thus, the court did not violate defendant’s right to counsel by accepting his personal decision to controvert the allegations in the People’s predicate felony statement notwithstanding defense counsel’s contrary views and advice … . Defendant’s related assertion that defense counsel was ineffective for failing to adequately apprise him of the ramifications of contesting the predicate felony statement is belied by the record … . People v Favors, 2020 NY Slip Op 00968, Fourth Dept 2-7-20

 

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FAILURE TO HOLD A HEARING TO DETERMINE DEFENDANT’S MENTAL CONDITION AFTER TWO PSYCHIATRISTS FOUND DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION WAS REVERSIBLE ERROR; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined it was reversible error to fail to conduct a hearing to determine defendant’s mental condition after defendant had been examined by two psychiatrists who concluded defendant suffered from a dangerous mental condition. The error was not preserved but was reviewed in the interest of justice:

Defendant now appeals, by permission of this Court, from an amended order that, upon the court’s finding that defendant suffered from a dangerous mental disorder, committed him to the custody of the Commissioner of Mental Health for confinement in a secure facility.

… CPL 330.20 (6) provides that, “[a]fter the examination reports are submitted, the court must, within [10] days of the receipt of such reports, conduct an initial hearing to determine the defendant’s present mental condition” … . In this case, however, the court did not conduct an initial hearing. We agree with defendant that, as the People correctly concede, the court’s failure to conduct the requisite initial hearing constitutes reversible error … . Although defendant failed to preserve his contention for our review … , we nevertheless review it in the interest of justice … . People v David T., 2020 NY Slip Op 00964, Fourth Dept 2-7-20

 

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THE COURT, DEFENSE COUNSEL AND THE PROSECUTOR WERE UNDER THE MISCONCEPTION DEFENDANT WAS ELIGIBLE FOR A PAROLE SUPERVISION SENTENCE AT THE TIME DEFENDANT PLED GUILTY; THEREFORE THE MATTER CAN BE CONSIDERED ON APPEAL IN THE ABSENCE OF PRESERVATION; PLEA VACATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant was not eligible for a parole supervision sentence and the court, defense counsel and the prosecutor mistakenly believed defendant was eligible. Defendant’s guilty plea was based upon the understanding the court would consider such a sentence (which the court ultimately did not impose). Because all parties misunderstood the law, defendant could not be expected to have preserved the error by moving to withdraw his plea and the matter can therefore be considered on appeal:

… [W]e conclude that defendant’s plea should be vacated because “[i]t is impossible to have confidence, on a record like this, that defendant had a clear understanding of what he was doing when he entered his plea” … . In short, we “cannot countenance a conviction that seems to be based on complete confusion by all concerned” … . Where, as here, “the prosecutor, defense counsel and the court all suffered from the same misunderstanding of the [court’s sentencing discretion], it would be unreasonable to conclude that defendant understood it” … . Although the court did not commit to a sentence of parole supervision under CPL 410.91, it erroneously indicated that defendant was eligible for such a sentence and stated that it would consider such a sentence, among all sentencing options, at sentencing—it did not qualify its statement or advise defendant that there was a possibility that he was not eligible for such a sentence … . We therefore reverse the judgment, vacate the plea, and remit the matter to Supreme Court for further proceedings on the superior court information. In light of our determination, we do not reach defendant’s remaining contentions. People v Work, 2020 NY Slip Op 00962, Fourth Dept 2-7-20

 

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STATEMENT MADE IN PRIOR APPELLATE DECISION IN THE SAME MATTER TO THE EFFECT NO ONE QUESTIONED THE NUMBER OF HOURS PUT IN BY THE ATTORNEY FOR THE CHILD WAS DICTA AND THEREFORE SHOULD NOT HAVE BEEN CONSIDERED THE LAW OF THE CASE ON REMITTAL; THE FOURTH DEPARTMENT REDUCED THE NUMBER OF BILLABLE HOURS (FOURTH DEPT).

The Fourth Department, reducing the amount of attorney’s fees awarded by Supreme Court, noted that a statement made by the Fourth Department in a prior appeal in the same matter was dicta and therefore should not have been treated as the law of the case by Supreme Court. In the prior decision the Fourth Department stated that no one had questioned the number of hours the attorney (Reedy) had worked on the case as the attorney for the child. Supreme Court took that statement to mean the number of hours could not be reduced by the court on remittal:

Our prior order unequivocally directed the court to calculate the amount of Reedy’s fees. An award of attorney’s fees must be “calculated on the basis of the . . . hours actually and reasonably spent on the matter by . . . counsel, multiplied by counsel’s reasonable hourly rate” … . In assessing the reasonableness of the hours spent by counsel, the issue “is not whether hindsight vindicates an attorney’s time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in the same time expenditures” …  . Thus, upon remittal the court was, inter alia, to determine an award of attorney’s fees that adequately reflected both the time spent and whether such time “was reasonably related to the issues litigated” … . Here, especially in light of Reedy’s prior concession that the amount sought was excessive, we conclude that the court abused its discretion in fixing the amount of fees without determining the reasonableness of the number of hours included in Reedy’s fee request … .

Contrary to respondent’s contention, the court’s statement in its earlier decision that “[n]o one has questioned the number of hours [Reedy] has claimed” did not become law of the case. The doctrine of law of the case “applies only to legal determinations that were necessarily resolved on the merits in a prior decision” … . Consequently, the doctrine does not apply where, as here, the court makes statements that are “mere dicta” … . Inasmuch as the court’s ultimate ruling in its earlier decision was that Reedy was not entitled to compensation as a private pay AFC, the court’s statement about the number of hours that he worked was dictum. Stefaniak v Zulkharnain, 2020 NY Slip Op 00961, Fourth Dept 2-7-20

 

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TORTIOUS INTERFERENCE WITH EMPLOYMENT AND DEFAMATION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION PROPERLY DISMISSED; ELEMENTS EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff stated causes of action for tortious interference with employment and defamation against a fellow employee of the Central New York Society for the Prevention of Cruelty to Animals (CNYSPCA), The intentional infliction of emotional distress cause of action was properly dismissed. The Fourth Department explained the elements of each cause of action and noted that the documents submitted to prove the truth of the allegedly defamatory statements were not “essentially undeniable” and did not “utterly refute” the allegations:

Plaintiff commenced this action to recover damages for tortious interference with employment, defamation, and intentional infliction of emotional distress (IIED). According to the complaint, at all times relevant to this appeal, plaintiff was the Executive Director of the Central New York Society for the Prevention of Cruelty to Animals (CNYSPCA) and defendant Stacy Laxen, DVM was a veterinarian for the CNYSPCA. During her tenure with the CNYSPCA, plaintiff directed that several cats be euthanized due to an outbreak of ringworm. Soon thereafter, and based on plaintiff’s decision to approve euthanasia without input from a veterinarian, defendant Board of Directors of the CNYSPCA terminated plaintiff’s employment. …

“[A]n at-will employee may assert a cause of action alleging tortious interference with employment where he or she can demonstrate that the defendant utilized wrongful means to effect his or her termination . . . In such cases, the plaintiff is required to show: (1) the existence of a business relationship between the plaintiff and a third party; (2) the defendants’ interference with that business relationship; (3) that the defendants acted with the sole purpose of harming plaintiff or used dishonest, unfair, improper or illegal means that amounted to a crime or an independent tort; and (4) that such acts resulted in the injury to the plaintiff’s relationship with the third party” … .  …

… [W]e conclude that plaintiff sufficiently alleged that Laxen’s statements constituted defamation per se inasmuch as they purportedly injured plaintiff in her “professional standing”… . Furthermore, despite the court’s determination that plaintiff was a limited purpose public figure and Laxen was protected by the common interest qualified privilege, accepting the facts as alleged in the complaint as true, and according plaintiff the benefit of every possible favorable inference, we conclude that the complaint sufficiently alleged that Laxen acted with the requisite malice necessary to overcome those defenses … . Conklin v Laxen, 2020 NY Slip Op 00958, Fourth Dept 2-7-20

 

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THE PORTION OF THE ARBITRATOR’S AWARD WHICH CONFLICTED WITH THE COLLECTIVE BARGAINING AGREEMENT AND THE PORTION OF THE AWARD WHICH WAS NONFINAL SHOULD NOT HAVE BEEN CONFIRMED BY SUPREME COURT (FOURTH DEPT).

The Fourth Department determined certain findings made by the arbitrator shouldn’t have been confirmed by Supreme Court. The matter concerned the elimination of teaching positions to accommodate the hiring of teachers’ aides. In one instance the arbitrator’s ruling conflicted with the terms of the collective bargaining agreement (CBA). And in the other instance the arbitrator’s ruling was nonfinal:

An award may be vacated where an arbitrator, “in effect, made a new contract for the parties in contravention of [an] explicit provision of [the] arbitration agreement which denied [the] arbitrator power to alter, add to or detract from” the collective bargaining agreement (CBA) … . …

An award is nonfinal and indefinite if, inter alia, “it leaves the parties unable to determine their rights and obligations” … . Matter of Arbitration Between Buffalo Teachers Fedn., Inc. (Board of Educ. of the Buffalo Pub. Schs.), 2020 NY Slip Op 00794, Fourth Dept 1-31-20

 

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THE WARRANTLESS SEIZURE AND SEARCH OF A BAG IN DEFENDANT’S CAR WAS NOT JUSTIFIED UNDER THE INEVITABLE DISCOVERY DOCTRINE; ERROR HARMLESS HOWEVER (FOURTH DEPT).

The Fourth Department determined the inevitable discovery doctrine did not apply to a “diabetes bag” seized by the police. The bag should have been suppressed, but error was deemed harmless:

On the day of his arrest, a police officer pulled defendant’s vehicle over for failing to signal. Defendant had a passenger with him. After approaching the vehicle, the officer observed that defendant appeared to be under the influence of drugs and placed him under arrest. The passenger was also arrested. At a suppression hearing, the officer testified that, after she arrested defendant and seated him in her patrol vehicle, defendant indicated that he had diabetes medication in his vehicle. Defendant did not give the officer permission to retrieve the bag of medication from his vehicle or say that he needed it at that time, nor did he give her permission to open the bag. The officer testified that she retrieved the bag for defendant because defendant would be allowed access to certain medication in lockup; she did not intend to give the bag to defendant while he was in the patrol vehicle. The officer looked in the bag and found needles, “narcotics,” and “some residue”—not diabetes medication. Defendant’s vehicle was subsequently impounded pursuant to Buffalo Police Department (BPD) written policy. During the inventory search of the vehicle, the officers recovered, inter alia, methamphetamine. * * *

We agree with defendant, however, that the court erred in refusing to suppress the evidence obtained from the diabetes bag pursuant to the inevitable discovery doctrine. The contents of the diabetes bag that defendant sought to suppress was the “very evidence” that was obtained as the “immediate consequence of the challenged police conduct” … . People v Hayden-larson, 2020 NY Slip Op 00791, Fourth Dept 1-31-20

 

FAMILY COURT SHOULD NOT HAVE HELD A CUSTODY HEARING WITHOUT FATHER’S PARTICIPATION (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court should have held a custody hearing without father’s participation:

During an appearance at which Family Court specifically stated that it was not “making any findings” and that it would make findings only after a future hearing, the father apparently grew frustrated with the proceedings and walked out of court. As the father was leaving, the court warned him that it would issue a permanent order in his absence. Thereafter, the court proceeded to hold a hearing, take testimony from the mother, and issue its determination on custody and visitation.

“It is axiomatic that custody determinations should [g]enerally be made only after a full and plenary hearing and inquiry . . . This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest[s] of the child[ren]” … . Indeed, custody determinations “require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child. The value of a plenary hearing is particularly pronounced in custody cases in light of the subjective factors—such as the credibility and sincerity of the witnesses, and the character and temperament of the parents—that are often critical to the court’s determination” … . Matter of Williams v Davis, 2020 NY Slip Op 00777, Fourth Dept 1-31-20

 

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THE CHILDREN WISHED TO REMAIN WITH MOTHER BUT CUSTODY WAS AWARDED TO FATHER; THE ATTORNEY FOR THE CHILD AGREED FATHER SHOULD HAVE CUSTODY; MOTHER REQUESTED A LINCOLN HEARING WHICH WAS DENIED; THE DISSENT ARGUED A LINCOLN HEARING SHOULD HAVE BEEN HELD (FOURTH DEPT).

The Fourth Department determined custody of the children was properly granted to father, against the children’s wishes.  The attorney for the child (AFC) informed the court of the children’s wishes but supported custody by the father. The mother unsuccessfully argued a Lincoln hearing should have been held. The dissent agreed that a Lincoln hearing was necessary:

The mother further contends that the court erred in declining to conduct a Lincoln hearing. Inasmuch as the AFC expressed the children’s wishes to the court … , the children were both of young age … , and there are indications in the record that they were being coached on what to say to the court … , we perceive no abuse of discretion in the court’s denial of the mother’s request for a Lincoln hearing … . * * *

From the dissent:

While the decision whether to conduct a Lincoln hearing is discretionary, it is ” often the preferable course’ ” to conduct one … . Indeed, a child’s preference, although not determinative, is an “important” factor that provides the court, while considering the potential for influence and the child’s age and maturity, “some indication of what is in the child’s best interests” … . In addition, the in camera testimony of a child may ” on the whole benefit the child by obtaining for the [court] significant pieces of information [it] needs to make the soundest possible decision’ ” … .

In this case, the children were 10 and 7 years old, respectively, at the time of the proceeding, ages at which a child’s “wishes [are] not necessarily entitled to the great weight’ we accord to the preferences of older adolescents . . . [but are], at minimum, entitled to consideration’ ” … . Most importantly, the Attorney for the Children (AFC) substituted his judgment for that of the children and advocated that custody be transferred from the mother to the father, despite the fact that the children had been in the mother’s custody since birth and the fact that the father admitted to having committed an act of domestic violence against the mother. While the AFC did inform the court of the children’s expressed wishes to live with the mother, in my view, the court should have conducted a Lincoln hearing to consider those wishes and the reasons for them. Matter of Muriel v Muriel, 2020 NY Slip Op 00776,  Fourth Dept 1-31-20

 

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THERE SHOULD ONLY BE ONE SORA RISK ASSESSMENT PROCEEDING BASED UPON THE SAME RISK ASSESSMENT INSTRUMENT (RAI); HERE THERE WERE TWO ASSESSMENTS IN TWO COUNTIES, ONE AT LEVEL TWO AND ONE AT LEVEL THREE; THE LEVEL THREE RISK ASSESSMENT WAS VACATED (FOURTH DEPT).

The Fourth Department determined there should not be more than one SORA risk assessment for convictions stemming from the same course of conduct and based upon the same Risk Assessment Instrument (RAI). The first risk assessment was in Allegany County and designated defendant a level two risk. The second risk assessment was in Cattaraugus County and designated defendant a level three risk based upon the evidence. The Cattaraugus County assessment was vacated:

… [D]efendant was convicted in Cattaraugus County Court upon his plea of guilty of attempted sodomy in the second degree and, that same year, he was convicted in Allegany County Court upon his plea of guilty of sexual abuse in the first degree. The convictions stemmed from a course of conduct against one victim that occurred in both jurisdictions. Defendant was sentenced in both cases and, prior to his release from prison, Allegany County Court held a proceeding to determine his risk level designation under the Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.) and designated him a level two risk. Cattaraugus County Court subsequently held a SORA proceeding utilizing a risk assessment instrument (RAI) and case summary that were substantively identical to those used in the Allegany County SORA proceeding, but designated defendant a level three risk. On a prior appeal … , we affirmed the order of Cattaraugus County Court designating him a level three risk.

“Where, as here, a single RAI addressing all relevant conduct is prepared, the goal of assessing the risk posed by the offender is fulfilled by a single SORA adjudication. To hold otherwise—that is, to permit multiple risk level determinations based on conduct included in a single RAI—would result in redundant proceedings and constitute a waste of judicial resources” … . In order to prevent multiple courts from reaching conflicting conclusions based on the same RAI, “one—and only one—sentencing court should render a risk level determination based on all conduct contained in the RAI” … . Inasmuch as the Cattaraugus County SORA proceeding was duplicative, we reverse the order and vacate defendant’s risk level determination  by Cattaraugus County Court … . People v Miller, 2020 NY Slip Op 00766, Fourth Dept 1-31-20

 

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