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Denial of Guilt to Department of Probation (DOP) Was Not a Violation of a Condition that Defendant Cooperate With the DOP

The Second Department determined defendant’s denial of guilt to the Department of Probation (DOP) prior to sentencing was not a violation of a condition that he cooperate with the DOP.  The sentencing court therefore was not justified in imposing an enhanced sentence:

As a condition of the court’s promised sentence, the defendant agreed (1) to cooperate with the Department of Probation (hereinafter the DOP), (2) to appear on any scheduled court dates, and (3) to remain arrest free. The defendant appeared for his interview with the DOP and answered all of the questions asked, but in doing so, he also denied his guilt. However, he did not express any intention to withdraw his plea of guilty. At sentencing, the defendant contended that he did not deny his guilt to the DOP. Nonetheless, the court found that the defendant violated the “cooperation” condition by lying to the DOP. The court then imposed an enhanced sentence without first giving the defendant an opportunity to ask to withdraw his plea of guilty.

Although the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence …, here, the defendant’s denial of his guilt to the DOP was not a violation of the condition that he cooperate with the DOP … . While a court is free to impose a condition requiring a defendant not to deny his or her guilt when interviewed by the DOP, the Supreme Court in the instant matter did not impose such a condition … . Accordingly, it erred in imposing an enhanced sentence based on its conclusion that the defendant violated a condition of the plea of guilty… . People v Pianaforte, 2015 NY Slip Op 01969, 2nd Dept 3-11-15

Failure to Cooperate In Formulating Mental Health Treatment Plan for Child Constituted Neglec

The Second Department affirmed Family Court’s finding of neglect based upon the mother’s failure to cooperate in formulating a plan for mental health treatment of the child.  The court explained the analytical criteria:

To establish neglect based upon a parent’s failure to provide adequate medical care, a petitioner must prove, by a preponderance of the evidence, that the child’s physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, and that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in supplying the child with adequate medical care, though financially able to do so (see Family Ct Act §§ 1012[f][i][A]…). A parent’s unwillingness to follow a recommended course of psychiatric treatment which results in the impairment of a child’s emotional health may support a finding of neglect … . Even so, in the context of a petition alleging medical neglect, “the court’s role is not as surrogate parent and the inquiry is not posed in absolute terms of whether the parent has made the right’ or wrong’ decision” … . Rather, in deciding whether a parent has been neglectful by depriving his or her child of adequate medical care, the court must determine whether the parent has provided an acceptable course of treatment in light of all of the surrounding circumstances … .

Here, the mother’s refusal to consent to the course of medical treatment proposed by mental health professionals would not, by itself, have justified a finding of medical neglect. Nonetheless, the credible evidence established that the mother did not merely disagree with the course of medical treatment proposed for [the child], but also refused to cooperate in formulating any appropriate treatment … . Matter of Jaelin L. (Kimrenee C.), 2015 NY Slip Op 01946, 2nd Dept 3-11-15

 

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Plaintiff Brought a Frivolous Lawsuit Solely to Harass/Costs Properly Imposed on Plaintiff

The Second Department determined plaintiff had brought a frivolous lawsuit to harass and costs were properly imposed on the plaintiff:

A court may award a party “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct” (22 NYCRR 130.1.1[a]). “In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” (22 NYCRR 130-1.1[a]…). “[C]onduct is frivolous if . . . (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR 130-1.1[c]…). The decision whether to impose costs or sanctions against a party for frivolous conduct, and the amount of any such costs or sanctions, is generally entrusted to the court’s sound discretion … .

Here, the Supreme Court properly determined, after a hearing, that the plaintiff engaged in frivolous conduct in commencing this action, as this action is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law,” and was undertaken primarily to harass the defendants … . Strunk v New York State Bd. of Elections, 2015 NY Slip Op 01936, 2nd Dept 3-11-15

 

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Child’s Disclosure of Sexual Abuse One Year After Abuse Ended Properly Admitted Under the “Prompt Outcry” Exception to the Hearsay Rule

The Second Department determined a child’s disclosure of sexual assault one year after the abuse ended was properly admitted under the “prompt outcry” exception to the hearsay rule:

Evidence that a sexual assault victim promptly complained about the incident is admissible to corroborate the allegation that an assault took place … . “An outcry is prompt if made at the first suitable opportunity’ …, and is a relative concept dependent on the facts’ … . “There can be no iron rule on the subject. The law expects and requires that it should be prompt, but there is and can be no particular time specified” … . “[W]hat might qualify as prompt in one case might not in another” … .

Here, the trial court permitted testimony concerning the victim’s first “outcry” to a friend which occurred approximately one year after the abuse had ended … . Under all of the circumstances of this case, including the victim’s young age, and the fact that she lived with the defendant during the relevant period, the trial court properly admitted evidence of the victim’s outcry to her friend … . People v Caban, 2015 NY Slip Op 01959, 2nd Dept 3-11-15

 

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Corroboration Requirements for Child’s Out-of-Court Statements Described

The Second Department agreed with Family Court’s ruling that the child’s out-of-court statements were sufficiently corroborated to be allowed in evidence.  The court explained the analytical criteria:

“A child’s prior out-of-court statements may provide the basis for a finding of abuse, provided that these hearsay statements are corroborated, so as to ensure their reliability'” … . “Any other evidence tending to support the reliability of the previous statements . . . shall be sufficient corroboration” (Family Ct Act § 1046[a][vi]). ” The Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated'” … . “The Family Court’s credibility findings must be accorded considerable deference on appeal” … . Matter of Zeeva M. (Abraham M.), 2015 NY Slip Op 01948, 2nd Dept 3-11-15

 

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Delay In Coming Forward With Defendant’s Alibi Was a Proper Subject of Cross-Examination After Foundational Requirements Were Met

The Second Department determined defendant’s girlfriend was properly cross-examined about her delay in coming forward with defendant’s alibi.  The prosecutor laid the proper foundation for the cross-examination:

…[T]he People properly elicited testimony from his girlfriend during cross-examination regarding her delay in coming forward to the authorities with certain exculpatory information. Before a defense witness may be cross-examined regarding his or her failure to come forward with exculpatory information at an earlier date, certain foundational requirements must first be met … . Here, the prosecutor laid the necessary foundation prior to cross-examining the defendant’s girlfriend about her apparent delay in informing law enforcement authorities of the defendant’s alibi. The record indicates that, during a bench conference, it was ascertained that the defendant’s girlfriend had not refrained from speaking to authorities under the advice of defense counsel. Moreover, the court instructed the jury that the defendant’s girlfriend had no obligation to volunteer exculpatory information to law enforcement authorities. Under these circumstances, the People properly elicited evidence during the cross-examination of the defendant’s girlfriend that she delayed in contacting the authorities with exculpatory evidence … . People v Webster, 2015 NY Slip Op 01974, 2nd Dept 3-11-15

 

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Failure to Follow Statutory Risk-Level-Determination Procedure Violated Defendant’s Due Process Rights

The Second Department determined that ignoring the statutory SORA risk-level-determination procedure violated defendant’s due process rights. The court exercised its interest of justice jurisdiction in the absence of an objection by the defendant:

Supreme Court sentenced the defendant to two one-year terms of incarceration, without any probation supervision. The court conducted the risk assessment hearing and made its risk level determination immediately prior to imposing sentence, and did so using a risk level assessment instrument prepared by the District Attorney’s office. This procedure violated SORA and deprived the defendant of his right to due process … . Pursuant to the SORA statutory scheme, a risk level determination should not have been made until 30 days before the defendant’s release from custody (see Correction Law § 168-n[2]…). The court’s determination should have been preceded by the Board’s risk level recommendation, and the defendant should have been notified of the opportunity to submit to the Board any information that he believed was relevant for its review … . People v Grabowski, 2015 NY Slip Op 01930, 2nd Dept 3-11-15

 

Failure to Include Restitution in Plea Agreement Required that the Sentencing Court Give the Defendant the Opportunity to Withdraw Her Plea Before Including Restitution in the Sentence

The Second Department determined County Court erred when it, in the absence of a prior agreement, imposed restitution as part of defendant’s sentence without giving the defendant the opportunity to withdraw her plea:

Although a court is free to reserve the right to order restitution as part of a plea agreement, the County Court did not do so here. Instead, at the very end of the sentencing proceeding, after imposing the agreed-upon terms, the court briefly turned to other matters prior to stating that it was also signing restitution judgment orders.

The defendant contends, among other things, that, before adding restitution to the sentence, the County Court should first have given her the option to withdraw her plea of guilty or to accept a sentence including restitution. Preliminarily, we note that, in light of the fact that the court did not give the defendant a sufficient opportunity to withdraw her plea of guilty before imposing restitution, the defendant’s claim is not subject to the preservation requirement … . Moreover, we agree with the defendant that the County Court erred … . People v Molinaro, 2015 NY Slip Op 01820, 2nd Dept 3-4-15

 

DLRA Provision Terminating Sentences After Three Years of Unrevoked Parole Did Not Apply to Non-Drug Related Offense by “Merger”

The Second Department, in a full-fledged opinion by Justice Rivera, determined that the provision of the Drug Law Reform Act (DLRA) [Executive Law former 259-j (3-a)] which allowed the termination of sentences for enumerated drug crimes after three years of unrevoked parole did not apply (under a merger theory) to a non-drug conspiracy offense where the maximum sentence for the conspiracy had not expired at the time the three-year-unrevoked-parole mark for the drug offenses had been reached:

The application of Executive Law former § 259-j(3-a) to this petitioner did not squarely fit within the express purpose of the 2004 DLRA. The 2004 DLRA was intended to grant specific relief to a clearly identified and circumscribed class, namely, “low level non-violent drug offenders” … . A “manager of a drug ring” cannot be deemed to be the low level offender contemplated by the statute. Further, it is unreasonable to perceive someone convicted of conspiracy to murder as “nonviolent.”

Notwithstanding the foregoing, the petitioner seeks more than the benefit heretofore conferred upon him by the 2004 DLRA and Executive Law former § 259-j(3-a). He seeks, in effect, to bootstrap the sentence imposed on the conspiracy conviction to the sentences imposed on the drug-related convictions in an attempt to discharge the remaining term thereof. However, this attempt must fail for the following reasons.

First, Executive Law former § 259-j(3-a) applies only to the specific drug-related felony offenses set forth in articles 220 and 221 of the Penal Law (see Correction Law § 205[4]). That statute cannot be reasonably construed to terminate the petitioner’s sentence on the conspiracy conviction, a non-drug-related conviction. The outcome sought by the petitioner is contrary to established precedent. Courts applying the DLRA are “not given the discretion to fashion new sentences or add terms of imprisonment, but are constrained to make an existing sentence determinate in the manner dictated by the DLRA” … .

Second, we disagree with the petitioner’s reading of Penal Law § 70.30(1) … . * * * The express language of Penal Law § 70.30(1) states that the maximum terms shall “be satisfied by discharge of the term which has the longest unexpired time to run.” … [A]t the time that [petitioner] became eligible for relief under Executive Law former § 259-j(3-a), none of the terms had expired or been discharged. The application of Executive Law former § 259-j(3-a) operated to effectively shorten the maximum term of his drug-related sentences (i.e., life) to the approximately 16 years that the petitioner served. Thus, upon the application of the early-termination provision under Executive Law former § 259-j(3-a), the maximum term of his sentence on the conspiracy conviction, which was 25 years, had the longest unexpired time to run (see Penal Law § 70.30[1][a]). People ex rel. Baez v Superintendent, Queensboro Corr. Facility, 2015 NY Slip Op 01827, 2nd Dept 3-4-15

 

Current Builder Acquired a Vested Right to Variances Issued to Original Builder

The Second Department determined the builder had a vested right in variances issued 25 years before to the original builder.  The “vested right” concept was explained as follows:

Vested rights accrue where the owner does substantial construction and incurs substantial expense, in good-faith reliance on a permit … . “Although many cases speak in terms of reliance on permits, a right may vest in certain situations when subdivisions’ have been given a final grant of approval'” … . An owner may acquire vested rights to a site where the site is but a part of a single project and substantial construction had been commenced and substantial expenditures made in connection with other phases of the integrated project which also benefitted or bore some connection to the affected site, such as infrastructure for the entire project … . Where vested rights accrue, a successor-in-interest succeeds to the vested rights … .

Here, the project was approved as an integrated project. [The builder] and its predecessors completed substantial construction of project-wide infrastructure to the benefit of the contemplated midrises and incurred substantial expenditures in good-faith reliance on the continuing validity of the variances. [The builder] thus accrued a vested right to complete construction of the midrises in accordance with the approved site plan and variances … . Matter of Waterways Dev. Corp. v Town of Brookhaven Zoning Bd. of Appeals, 2015 NY Slip Op 01808, 2nd Dept 3-4-15

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