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HEARING SHOULD HAVE BEEN HELD TO DETERMINE WHETHER INTIMATE RELATIONSHIP PROVIDED FAMILY COURT WITH JURISDICTION OVER PETITION SEEKING ORDER OF PROTECTION.

The Second Department determined Family Court should have held a hearing to determine whether the court had jurisdiction over a petition for an order of protection based upon an “intimate relationship” between the subject of the proposed order of protection and the petitioner:

Although the statute expressly excludes a “casual acquaintance” and “ordinary fraternization between two individuals in business or social contexts” from the definition of “intimate relationship” (Family Ct Act § 812[1][e]), “the legislature left it to the courts to determine on a case-by-case basis what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e), based upon consideration of factors such as the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship'” … . “[T]he determination as to whether persons are or have been in an intimate relationship’ within the meaning of Family Court Act § 812(1)(e) is a fact-specific determination which may require a hearing” … .

Here, in light of the parties’ conflicting allegations as to whether they had an “intimate relationship” within the meaning of Family Court Act § 812(1)(e), the Family Court, prior to determining the respondent’s motion, in effect, to dismiss, should have conducted a hearing on that issue … . Matter of Singh v DiFrancisco, 2016 NY Slip Op 05504, 2nd Dept 7-13-16

FAMILY LAW (HEARING SHOULD HAVE BEEN HELD TO DETERMINE WHETHER INTIMATE RELATIONSHIP PROVIDED FAMILY COURT WITH JURISDICTION OVER PETITION SEEKING ORDER OF PROTECTION)/INTIMATE RELATIONSHIP (FAMILY LAW, HEARING SHOULD HAVE BEEN HELD TO DETERMINE WHETHER INTIMATE RELATIONSHIP PROVIDED FAMILY COURT WITH JURISDICTION OVER PETITION SEEKING ORDER OF PROTECTION)

NON-RELATIVE ALLEGED EXTRAORDINARY CIRCUMSTANCES REQUIRING A HEARING ON HER CUSTODY PETITION.

The Second Department, reversing Family Court, determined petitioner, a non-relative who regularly cared for the child, had made a showing of extraordinary circumstance sufficient to require a hearing on her petitioner for custody:

Although an individual who is unrelated to a child has no statutory right to seek custody … , a nonrelative may nevertheless be afforded standing to seek custody upon a showing of extraordinary factual circumstances … . We conclude that, contrary to the determination of the Family Court, the evidence presented at the hearing compels a finding of “extraordinary circumstances” … . The petitioner sustained her burden of demonstrating extraordinary circumstances based upon, inter alia, the prolonged separation of the grandfather and the step-grandmother from the subject child, their lack of significant involvement in the child’s life for a period of time, their failure to contribute to the child’s financial support, and the strong emotional bond between the child and the petitioner … . Matter of Cade v Roberts, 2016 NY Slip Op 05495, 2nd Dept 7-13-16

FAMILY LAW (NON-RELATIVE ALLEGED EXTRAORDINARY CIRCUMSTANCES REQUIRING A HEARING ON HER CUSTODY PETITION)/CUSTODY (NON-RELATIVE ALLEGED EXTRAORDINARY CIRCUMSTANCES REQUIRING A HEARING ON HER CUSTODY PETITION)

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POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE.

The Second Department reversed defendant’s conviction as against the weight of the evidence, essentially finding the police officer’s testimony incredible:

Here, an acquittal would not have been unreasonable, particularly in light of objective facts—including the arresting officer’s failure to record the arrest in his memo book, his failure to call in the arrest, his failure to voucher the bandanas or masks, and the loss of the case folder containing the original of the defendant’s written statement and signed Miranda waiver—all of which cast doubt on the arresting officer’s credibility … . Moreover, the defendant testified at trial to a completely different version of events, including that he and his companion were not wearing masks or bandanas and he did not possess a gun or any marihuana. The defendant’s credibility was supported by the testimony of three character witnesses regarding his propensity for truthfulness, and no evidence was elicited to undermine the defendant’s credibility. Notably, the defendant had no prior history of arrests and had been gainfully employed by the same employer for seven years. Further, the defendant’s companion, who also had no history of prior arrests and had been gainfully employed for six years, testified to the same version of events as the defendant. Upon the exercise of our factual review power (see CPL 470.15), we find that the rational inferences which can be drawn from the evidence presented at trial do not support the conviction beyond a reasonable doubt … . People v Oneill, 2016 NY Slip Op 05510, 2nd Dept 7-13-16

CRIMINAL LAW (POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE)/EVIDENCE (CRIMINAL LAW, POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE

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SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED.

The Second Department determined the show up identification 30 minutes after the crime was not unduly suggestive and should not have been suppressed:

Here, the People met their initial burden of establishing that the showup identification procedure, which was conducted within approximately 30 minutes of the crime and within three or four blocks of the crime scene, was reasonable under the circumstances and lacked undue suggestiveness … . The defendants, in turn, failed to satisfy their ultimate burden of proving that the showup identification procedure was unduly suggestive and subject to suppression. Under the circumstances of this case, the mere presence of police, patrol cars, headlights, or other lighting at the scene of the identifications did not render the procedure unduly suggestive … . People v Huerta, 2016 NY Slip Op 05508, 2nd Dept 7-13-16

CRIMINAL LAW (SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/IDENTIFICATION (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/SHOWUP (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)

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DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction because he was not informed his guilty plea would result in deportation should have been granted on “ineffective assistance” grounds. Defendant did not perfect an appeal. However the motion to vacate was a valid vehicle because it depended in part on non-record matters:

Since the defendant’s claim that he was deprived of the effective assistance of counsel involves a mixed claim that depends, in part, upon matter that would not appear on the record had there been a direct appeal from the judgment, his claims were properly presented in a motion pursuant to CPL 440.10 … .

Under the circumstances of this case, we find that the defendant established that he was deprived of the effective assistance of counsel, in that there was no “strategic reason” … for his attorney’s failure to advocate for a sentence that would result in the same overall aggregate prison time for the defendant, but which would have resulted in no mandatory immigration consequences … . People v Moore, 2016 NY Slip Op 05509, 2nd Dept 7-13-16

 

CRIMINAL LAW (DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED)/INEFFECTIVE ASSISTANCE (DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED)/ATTORNEYS (CRIMINAL LAW, DEFENDANT NOT INFORMED OF DEPORTATION CONSEQUENCES OF HIS PLEA, MOTION TO VACATE CONVICTION FOR INEFFECTIVE ASSISTANCE SHOULD HAVE BEEN GRANTED

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INSURER FAILED TO GIVE ADEQUATE NOTICE OF A CHANGE IN THE COVERAGE OF THE UNDERLYING AUTO LIABILITY POLICY REQUIRED BY ITS UMBRELLA POLICY, UMBRELLA POLICY REFORMED TO RESTORE THE RESULTING GAP IN COVERAGE.

The Second Department, in a full-fledged opinion by Justice Cohen, determined defendant insurer failed to notify plaintiff of an elimination of coverage as required by Insurance Law 3425. The insurance contract was reformed to include the eliminated coverage. Plaintiff had a $1,000,000 umbrella auto insurance policy with the defendant insurer (Allstate). When plaintiff purchased the umbrella policy it required $100,000/$300,000 coverage in the underlying policy. Although the limit of the umbrella policy did not change, the requirements for the underlying policy were increased to $250,000/$500,000. After an accident, Allstate paid the excess over $250,000, but refused to pay the difference between the $100,000 actual coverage of the underlying policy and the $250,000 required coverage:

Insurance Law § 3425 imposes restrictions on a liability insurer’s right to cancel, refuse to renew, or condition renewal of a policy, and requires the insurer to provide notice to the policyholder before any cancellation, nonrenewal, or conditional renewal occurs. At issue on this appeal is Insurance Law § 3425(d)(1), which requires an insurer to notify a policyholder, at least 45 days before the end of the coverage period, of its intention to condition renewal “upon change of limits or elimination of any coverages,” and to provide a specific reason for so conditioning renewal. … [W]e find that the notice requirement of Insurance Law § 3425(d)(1) applies where, as here, an insurer issues an umbrella policy providing the policyholder with additional coverage above the limits of his or her automobile coverage, and then increases the amount of underlying automobile liability insurance the policyholder must maintain before the additional coverage provided by the umbrella policy becomes available. We further find that an insurer’s failure to comply with Insurance Law § 3425(d)(1) provides a basis for reformation of the subject policy. Gotkin v Allstate Ins. Co., 2016 NY Slip Op 05359, 2nd Dept 7-6-16

INSURANCE LAW (INSURER FAILED TO GIVE ADEQUATE NOTICE OF A CHANGE IN THE COVERAGE OF THE UNDERLYING AUTO LIABILITY POLICY REQUIRED BY ITS UMBRELLA POLICY, UMBRELLA POLICY REFORMED TO RESTORE THE RESULTING GAP IN COVERAGE)/CONTRACT LAW (INSURANCE POLICY, INSURER FAILED TO GIVE ADEQUATE NOTICE OF A CHANGE IN THE COVERAGE OF THE UNDERLYING AUTO LIABILITY POLICY REQUIRED BY ITS UMBRELLA POLICY, UMBRELLA POLICY REFORMED TO RESTORE THE RESULTING GAP IN COVERAGE)/REFORMATION (INSURANCE POLICY, INSURER FAILED TO GIVE ADEQUATE NOTICE OF A CHANGE IN THE COVERAGE OF THE UNDERLYING AUTO LIABILITY POLICY REQUIRED BY ITS UMBRELLA POLICY, UMBRELLA POLICY REFORMED TO RESTORE THE RESULTING GAP IN COVERAGE)

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FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS.

The Second Department, reversing Family Court, determined the petition for an order making specific findings which would lead to special immigrant resident status (SIJS) should have been granted:

Pursuant to 8 USC § 1101(a)(27)(J) … and 8 CFR 204.11, a special immigrant is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not possible due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the juvenile’s best interest to be returned to his or her previous country of nationality or country of last habitual residence … .

Based upon our independent factual review, the record establishes that the child’s father is deceased, and therefore, reunification of the child with the father is not possible … .

Further, the Family Court erred with respect to its recital of the best interest element. The law does not require a finding that “it is in [the child’s] best interest to remain in the United States,” but that “it would not be in the [child’s] best interest to be returned to [his or her] previous country of nationality or country of last habitual residence” (8 USC § 1101[a][27][J][ii]). Here, the record reflects that it would not be in the child’s best interest to be returned to El Salvador, her previous country of nationality and last habitual residence. Matter of Carlos A.M. v Maria T.M., 2016 NY Slip Op 05374, 2nd Dept 7-6-16

 

FAMILY LAW (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)/IMMIGRATION LAW (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)/SPECIAL IMMIGRANT RESIDENT STATUS (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)

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SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS.

The Second Department determined criminal contempt charges rendered the indictment multiplicitous. The charge offense was a continuing offense and there was no interruption in the course of conduct:

An indictment is multiplicitous ” when a single offense is charged in more than one count'” … . In addition, “[a]n 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, counts 4, 5, 6, 7, 8, 9, 10, and 11 of the indictment are multiplicitous of count three since those counts allege a continuous offense consisting of the defendant’s repeated telephone calls, over a nine-month period, with the intent to harass, annoy, threaten, or alarm the victim (see Penal Law § 215.51[b][iv]). The dates used by the prosecution to divide the counts did not establish that there was an interruption in the course of conduct … . People v Young, 2016 NY Slip Op 05395, 2nd Dept 7-6-16

CRIMINAL LAW (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/EVIDENCE (CRIMINAL LAW, SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/MULTIPLICITOUS INDICTMENT (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/INDICTMENTS (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/CONTINUING OFFENSE (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/CONTEMPT (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)

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PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE.

The Second Department determined the People had rebutted the presumption that unpreserved photo arrays were unduly suggestive:

… [A]lthough the People’s failure to preserve the photographic arrays displayed through the use of the photo manager system gives rise to a presumption of suggestiveness, the People nevertheless rebutted that presumption and sustained their initial burden of production through the testimony of the police officer who administered the photo identification procedure. The officer testified that the complainant’s daughter was shown computer-generated photo arrays shortly after the attack occurred. The officer further testified as to the specific information that was entered into the photo manager system, which included the perpetrator’s race and approximate age, height, and weight … . The officer testified that approximately 230 photographs fit the search criteria that was entered into the photo manager system and that these photographs were displayed in arrays consisting of six photographs at a time. Under the circumstances, the People sustained their initial burden of demonstrating the reasonableness of the police conduct and the lack of any undue suggestiveness … . Furthermore, upon our review of the record of the hearing, we conclude that the defendant failed to sustain his ultimate burden of proving that the photo identification procedure was unduly suggestive … . People v Busano, 2016 NY Slip Op 05385, 2nd Dept 7-6-16

CRIMINAL LAW (PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)/EVIDENCE (CRIMINAL LAW, PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)/PHOTO ARRAYS (PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)/IDENTIFICATION (CRIMINAL LAW, PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)

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PROSECUTORIAL MISCONDUCT WARRANTED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department reversed defendant’s conviction in the interest of justice because of the prosecutor’s misconduct. The decision went into great detail describing the substance of the misconduct (not summarized here):

… [T]he judgment of conviction must be reversed and a new trial ordered as a result of pervasive prosecutorial misconduct. During opening statements as well as on summation, the prosecutor repeatedly engaged in improper conduct, including misstating the evidence, vouching for the credibility of witnesses with regard to significant aspects of the People’s case, calling for speculation by the jury, seeking to inflame the jury and arouse its sympathy, and improperly denigrating the defense … . Although objections to some of the remarks below were sustained, we nevertheless include them in order to provide a more complete picture of the pervasiveness of the misconduct at issue on this appeal. People v Redd, 2016 NY Slip Op 05392, 2nd Dept 7-6-16

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT WARRANTED REVERSAL IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT WARRANTED REVERSAL IN THE INTEREST OF JUSTICE)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT, WARRANTED REVERSAL IN THE INTEREST OF JUSTICE)

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