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MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT).

The Second Department, in a full-fledged, exhaustive opinion by Justice Miller (too detailed to be fairly summarized here), determined defendant’s motion to vacate his conviction for a 1991 murder was properly granted (requiring a new trial). The early 90’s trial lasted one day. One of the police investigators has since been implicated in facilitating false identification testimony. The finger and palm print evidence did not match the defendant or his co-defendant. The blood evidence didn’t match. Crucial blood evidence was never tested and may have been lost. The identification evidence, the only evidence upon which the conviction could be based, was problematic. With respect to the criteria for newly discovered evidence in this context, the court wrote:

… [A] motion for a new trial based on newly discovered evidence should only be granted if the court finds, as a factual matter, that the movant has demonstrated that “[1] [n]ew evidence has been discovered since the entry of a judgment . . . [2] which could not have been produced by the defendant at the trial even with due diligence on his part and [3] which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10[1][g]).

The remaining three criteria should be used to evaluate the ultimate issue of whether the new evidence would “create a probability” of a more favorable verdict… . In assessing the probable impact of the new evidence, the court should consider whether and to what extent the new evidence is (1) material to the pertinent issues in the case, (2) cumulative to evidence that was already presented to the jury, and (3) merely impeaching or contradicting the evidence presented at trial … . People v Hargrove, 2018 NY Slip Op 02649, Second Dept 4-18-18

​CRIMINAL LAW (MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT))/VACATE CONVICTION, MOTION TO (MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT))/NEWLY DISCOVERED EVIDENCE (CRIMINAL LAW, (MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT))

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BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that although plaintiff did not demonstrate spoliation of evidence warranting striking the answer, the plaintiff was entitled to an order of preclusion regarding any requested documents which defendants claimed did not exist. Plaintiff was shot by an intruder in his apartment building and had demanded any documents concerning the doors, locks and security measures in force at the building:

… [T]he Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was pursuant to CPLR 3126 to impose a sanction upon the defendants for spoliation of evidence. The plaintiff failed to sustain his burden of establishing that spoliation occurred as there was no evidence submitted that the requested documents ever actually existed … . The plaintiff also did not establish that the absence of any such documents deprived him of his ability to prove his claim … . …

… [U]nder the circumstances of this case, the Supreme Court should have exercised its discretion to grant the plaintiff the alternative relief of an order of preclusion. An order of preclusion may be entered where the offending party’s lack of cooperation with disclosure was willful, deliberate, and contumacious … . “The willful and contumacious character of a party’s conduct may be inferred from the party’s repeated failure to comply with court-ordered discovery, and the absence of any reasonable excuse for those failures, or a failure to comply with court-ordered discovery over an extended period of time” … . Here, the defendants failed to produce relevant documents that were directed to be produced by the preliminary conference order. That failure led to two motions by the plaintiff to compel compliance, only to have the defendants assert that the building had been sold shortly after the preliminary conference order had been issued and that all documents had been transferred to the new owner. The new owner then denied having any of the requested documents. The defendants offer no excuse for their conduct. The defendants’ dilatory discovery conduct cannot be condoned, and it would be manifestly unfair to the plaintiff for the defendants to attempt to offer any of the subject documents at trial, should the documents be located. Watson v 518 Pa. Hous. Dev. Fund Corp., 2018 NY Slip Op 02666, Second Dept 4-18-18

​CIVIL PROCEDURE (NEGLIGENCE, EVIDENCE, DISCOVERY, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/DISCOVERY (NEGLIGENCE, EVIDENCE, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/SPOLIATION (BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/PRECLUSION (NEGLIGENCE, EVIDENCE, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/NEGLIGENCE (EVIDENCE, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))/EVIDENCE (NEGLIGENCE, DISCOVERY, BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT))

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PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS ALLEGING NEW INJURIES WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT).

The Second Department determined the defendants’ motion to strike the purported supplemental bills of particulars was properly granted. The supplemental bills of particulars alleged new injuries in this rear-end collision case. The supplemental bills of particulars were actually amended bills of particulars. Plaintiff failed to demonstrate the defendants were not prejudiced by the new allegations and failed to explain the delay:

Contrary to the plaintiff’s contention, the documents he denominated the “second supplemental bill of particulars” and “third supplemental bill of particulars” were, in reality, amended bills of particulars, as they sought to add new injuries (see CPLR 3403[b]… ). While leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise, here, the plaintiff failed to establish the absence of prejudice or surprise to the defendants, and failed to adequately explain the delay in seeking to add the new injuries … . Kirk v Nahon, 2018 NY Slip Op 02604, Second Dept 4-18-18

​CIVIL PROCEDURE (BILLS OF PARTICULARS, PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/BILLS OF PARTICULARS ( PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/SUPPLEMENTAL BILLS OF PARTICULARS (PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/AMENDED BILLS OF PARTICULARS (PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/CPLR 3403 (BILLS OF PARTICULARS, PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))/NEGLIGENCE (BILLS OF PARTICULARS, PURPORTED SUPPLEMENTAL BILLS OF PARTICULARS ALLEGING NEW INJURIES WERE ACTUALLY AMENDED BILLS OF PARTICULARS WHICH WERE PROPERLY STRUCK (SECOND DEPT))

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MAINTENANCE WORKER’S BACK INJURY FROM CARRYING A HEAVY BAG OF GARBAGE WAS CAUSED BY A RISK INHERENT IN THE WORK, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff maintenance worker’s back injury, caused by picking up a heavy bag of garbage, was not actionable because the injury was from a risk inherent in the work:

The defendant [lessee] established its prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence demonstrating that the subject garbage bag was not over a weight accepted or contractually agreed upon by the defendant and the plaintiff’s employer at the time of the alleged incident, and that the plaintiff’s injury resulted from a risk inherent in his assigned work as a maintenance worker … . Moody v Kelly Drye & Warren, LLP, 2018 NY Slip Op 02454, Second Dept 4-11-18

​NEGLIGENCE (MAINTENANCE WORKER’S BACK INJURY FROM CARRYING A HEAVY BAG OF GARBAGE WAS CAUSED BY A RISK INHERENT IN THE WORK, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (NEGLIGENCE, PERSONAL INJURY, MAINTENANCE WORKER’S BACK INJURY FROM CARRYING A HEAVY BAG OF GARBAGE WAS CAUSED BY A RISK INHERENT IN THE WORK, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

THE ROOT OVER WHICH PLAINTIFF TRIPPED WALKING THROUGH A LANDSCAPED AREA ADJACENT TO A PARKING LOT WAS INHERENT TO THE NATURE OF THE AREA AND THEREFORE NOT ACTIONABLE (SECOND DEPT).

The Second Department determined that the root plaintiff tripped over in a landscaped area was inherent to the area and was not actionable:

The plaintiff commenced this action seeking to recover damages for injuries he alleges he sustained when he tripped and fell as he was walking on a landscaped area on the defendants’ property. The plaintiff testified at his deposition that on the date at issue, he had parked his vehicle in the defendants’ parking lot and then stepped up over a curb and walked through a landscaped area of the grounds adjacent to the parking lot as a way of accessing the sidewalk to the defendants’ store. The landscaped area consisted of trees, shrubs, and mulch, and near the plaintiff’s parking spot, there was a gap in the shrubbery. The plaintiff was walking through the gap when he tripped and fell on a root just below the surface of the mulch. …

… [A] landowner “will not be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it” … . Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the root that had caused the plaintiff to trip and fall was inherent or incidental to the landscaped area and that it could be reasonably anticipated by those using it … . Miano v Rite Aid Hdqtrs. Corp., 2018 NY Slip Op 02453, Second Dept 4-11-18

​NEGLIGENCE (THE ROOT OVER WHICH PLAINTIFF TRIPPED WALKING THROUGH A LANDSCAPED AREA ADJACENT TO A PARKING LOT WAS INHERENT TO THE NATURE OF THE AREA AND THEREFORE NOT ACTIONABLE (SECOND DEPT))/SLIP AND FALL  (THE ROOT OVER WHICH PLAINTIFF TRIPPED WALKING THROUGH A LANDSCAPED AREA ADJACENT TO A PARKING LOT WAS INHERENT TO THE NATURE OF THE AREA AND THEREFORE NOT ACTIONABLE (SECOND DEPT))/ROOTS (SLIP AND FALL, THE ROOT OVER WHICH PLAINTIFF TRIPPED WALKING THROUGH A LANDSCAPED AREA ADJACENT TO A PARKING LOT WAS INHERENT TO THE NATURE OF THE AREA AND THEREFORE NOT ACTIONABLE (SECOND DEPT))

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A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined Supreme Court properly denied the petition for leave to file a late notice of claim. Petitioner alleged she fell and was injured while riding a bus owned by the county. A county police report was made about the incident. The Second Department held that the fact that the county was aware of the accident does not demonstrate the county was aware of the essential facts constituting the claim:

“In determining whether to grant a petition for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, [the] court must consider all relevant circumstances, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the delay would substantially prejudice the public corporation in its defense, and whether the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim”… . “While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance”… . “The determination of an application for leave to serve a late notice of claim is left to the sound discretion of the court” … .

The petitioner failed to establish that the respondents received timely, actual notice of the essential facts constituting the claim by reason of a police accident report filled out by an officer who responded to the scene of the petitioner’s accident. “Generally, knowledge of a police officer or of a police department cannot be considered actual knowledge of the public corporation itself regarding the essential facts of a claim” … . The fact that the Nassau County Police Department had actual knowledge of the accident, without more, cannot be considered actual knowledge of the essential facts underlying the claim against the respondents … . Matter of Cruz v Transdev Servs., Inc., 2018 NY Slip Op 02463, Second Dept 4-11-18

​MUNICIPAL LAW (NOTICE OF CLAIM, A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/BUSES (NEGLIGENCE, MUNICIPAL LAW, NOTICE OF CLAIM, A POLICE OFFICER’S OR POLICE DEPARTMENT’S KNOWLEDGE OF AN ACCIDENT CANNOT BE CONSIDERED ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM BY THE MUNICIPALITY, REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

PROPERTY OWNER’S LIABILITY UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A SCAFFOLD THAT DID NOT HAVE SAFETY RAILINGS IS BASED UPON ITS STATUS AS AN OWNER, NOT NEGLIGENCE, THEREFORE PROPERTY OWNER ENTITLED TO INDEMNIFICATION FROM GENERAL CONTRACTOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, who fell from a scaffold that did not have a safety railing,  was entitled to summary judgment on his Labor Law 240 (1) cause of action. The property owner was entitled to summary judgment against the general contractor on its indemnification action because the property owner was not negligent:

Labor Law § 240(1) requires property owners and contractors to furnish, or cause to be furnished, safety devices, such as scaffolds, which are “so constructed, placed and operated as to give proper protection” to workers. “To establish liability pursuant to Labor Law § 240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries”… . Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that he was injured when he fell from a scaffold that lacked safety rails on the sides, and that he was not provided with a safety device to prevent him from falling … . In opposition, the defendant failed to raise a triable issue of fact.

Additionally, the Supreme Court should have granted the defendant’s (property owner’s) motion for summary judgment on the third-party cause of action for contractual indemnification against the general contractor. The defendant established its prima facie entitlement to judgment as a matter of law by submitting a copy of a “Release and Hold Harmless Agreement,” together with evidence showing that it was free from any negligence in connection with the accident … . … Here, the defendant is liable to the plaintiff under Labor Law § 240(1) based solely upon its status as the owner of the premises. There is no evidence that the defendant was negligent, or that it directed, controlled, or supervised the manner in which the plaintiff performed his work… . Marulanda v Vance Assoc., LLC, 2018 NY Slip Op 02452, Second Dept 4-11-18

​LABOR LAW-CONSTRUCTION LAW (PROPERTY OWNER’S LIABILITY UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A SCAFFOLD THAT DID NOT HAVE SAFETY RAILINGS IS BASED UPON ITS STATUS AS AN OWNER, NOT NEGLIGENCE, THEREFORE PROPERTY OWNER ENTITLED TO INDEMNIFICATION FROM GENERAL CONTRACTOR (SECOND DEPT))/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, PROPERTY OWNER’S LIABILITY UNDER LABOR LAW 240 (1) FOR PLAINTIFF’S FALL FROM A SCAFFOLD THAT DID NOT HAVE SAFETY RAILINGS IS BASED UPON ITS STATUS AS AN OWNER, NOT NEGLIGENCE, THEREFORE PROPERTY OWNER ENTITLED TO INDEMNIFICATION FROM GENERAL CONTRACTOR (SECOND DEPT))

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MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s immigration status did not prevent her from being appointed guardian of her children and Family Court should have made the findings necessary for the children to apply for special immigrant juvenile states (SIJS):

Family Court improperly dismissed the guardianship petitions. Contrary to the court’s determination, the mother was not required to demonstrate that she has “legal status in this country” or had taken steps to obtain such status to qualify as a guardian. “[D]omicile means living in [a] locality with intent to make it a fixed and permanent home” … . An individual’s lack of lawful status in the United States is “immaterial to the issue of his [or her] domicile and, therefore, his [or her] eligibility to receive letters [of guardianship]”… . Here, notwithstanding the mother’s immigration status, the record demonstrates her intent to permanently reside in New York State. Thus, the mother cannot be deemed a “non-domiciliary alien” who is ineligible to receive letters of guardianship … . …

Furthermore, the Family Court should have granted the children’s motions for the issuance of an order making the requisite declaration and specific findings so as to enable them to petition for SIJS. Matter of Alan S. M. C., 2018 NY Slip Op 02459, Second Dept 4-11-18

​FAMILY LAW (GUARDIANSHIP, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/GUARDIANSHIP (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (GUARDIANSHIP, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/DOMICILE (FAMILY LAW, GUARDIANSHIP, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, (GUARDIANSHIP, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))

EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT).

The Second Department determined extraordinary circumstances warranted the award of custody to a grandparent and the sharing of custody with the parents:

… [T]he Family Court properly found that the paternal grandmother demonstrated the existence of extraordinary circumstances. The children’s parents were either unable or unwilling to provide the children with basic personal hygiene, clean clothes, adequate medical or dental care, or an appropriate place to sleep, and they also lacked insight into the children’s particular needs, which included multiple special needs with respect to one of the children… . In particular, the mother forgot to feed the children on several occasions, and the children often came to school hungry and dressed in dirty clothing that smelled of cat urine and feces. Moreover, the parents did not remedy the situation, despite multiple efforts by school personnel.

After finding the existence of extraordinary circumstances, the Family Court next inquired into what custodial arrangement would serve the children’s best interests. The court properly determined that the children’s best interests would be served by shared legal custody among the paternal grandmother and parents, with primary residential custody to the paternal grandmother and frequent contact and visitation between the parents and the children. Matter of Conroy v Conroy, 2018 NY Slip Op 02462, Second Dept 4-11-18

​FAMILY LAW (EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT))/CUSTODY  (EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT))/GRANDPARENTS (FAMILY LAW, CUSTODY, EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT))

THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT).

The Second Department determined the failure to resentence defendant in accordance with the plea agreement required that the defendant be given the opportunity to withdraw his pleas, not only to the charges in indictment on which he was resentenced, but also the charges in prior indictment from which the defendant had not appealed:

Here, the defendant contends that both of the underlying judgments should be reversed and the underlying guilty pleas vacated on the ground that the County Court deviated from the terms of the plea agreement by imposing an aggregate term of seven years’ imprisonment instead of the aggregate term of five years’ imprisonment that it had promised the defendant when he agreed to plead guilty. To the extent that the defendant seeks vacatur of the underlying pleas and reversal of the underlying judgments due to an alleged violation of the plea agreement, such a contention is not reviewable on this appeal since the defendant has only appealed from the resentence … . …

… [T]he County Court erred in resentencing the defendant to a period of postrelease supervision on the conviction of criminal sale of a firearm in the third degree that exceeded the period of postrelease supervision that had been promised to the defendant in connection with the plea agreement, without first affording the defendant the opportunity to withdraw his plea of guilty to that count … . Furthermore, inasmuch as the defendant’s plea of guilty on [the prior indictment], and his plea of guilty to the charge of criminal sale of a controlled substance in the third degree under [the second indictment] were induced by the promise that the sentences on the two indictments would all run concurrently, the defendant must be afforded the opportunity to withdraw his pleas of guilty under both of the indictments, for all three convictions … . People v Robinson, 2018 NY Slip Op 02490, Second Dept 4-11-18

​CRIMINAL LAW (SENTENCING, THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT))/PLEA AGREEMENTS  (SENTENCING, THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT))/SENTENCING (PLEA AGREEMENTS,  (SENTENCING, THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT))/GUILTY PLEAS, WITHDRAWAL OF  (THE COURT’S FAILURE TO SENTENCE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT ON ONE INDICTMENT REQUIRED THAT THE DEFENDANT BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEAS TO THAT INDICTMENT AND ANOTHER INDICTMENT FROM WHICH NO APPEAL HAD BEEN TAKEN (SECOND DEPT))

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