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Stipulation that Did Not Comply with Child Support Standards Act Upheld

In upholding a child support stipulation which did not comply with the Child Support Standards Act (CSSA), the Second Department explained the procedure for waiving the act:

Parties to a separation agreement are free to “opt out” of the provisions of the CSSA so long as their decision is made knowingly … . To ensure that waivers of the statutory provisions of the CSSA are truly knowingly made, Domestic Relations Law § 240(1-b)(h) requires specific recitals: (1) that the parties have been made aware of the CSSA; (2) that they are aware that the guidelines would result in the calculation of the presumptively correct amount of support; (3) that in the event the agreement deviates from the guidelines, it must recite the presumptively correct amount of support that would have been fixed pursuant thereto; and (4) the reason for the deviation … . The policy reasons underlying the requirement that waivers must be knowingly made are so strong that agreements that do not comply with the strictures of the CSSA are invalid and unenforceable, at least to the extent of the child support provisions set forth therein… . Rockitter v Rockitter, 2014 NY Slip Op 00336, 2nd Dept 1-22-14

 

Question of Fact Whether Vacuuming an HVAC Duct Was a Covered Cleaning Activity Under the Labor Law

The Second Department determined there was a question of fact whether vacuuming an HVAC duct was a covered “cleaning” activity under Labor Law 240(1):

Outside the sphere of commercial window washing (which is covered by Labor Law § 240[1]), the determination of whether an activity may be characterized as “cleaning” under the statute depends on a consideration of four factors. An activity cannot be considered “cleaning” under the statute if it: “(1) is routine, in the sense that it is the type of job that occurs on a daily, [*2]weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project” … . Collymore v 1895 WWA, LLC, 2014 NY Slip Op 00320, 2nd Dept 1-22-14

 

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Separate Dispositional Hearing to Determine Best Interests of the Child Appropriate in Mental Illness Parental-Rights Termination Proceeding

The Second Department explained when a separate dispositional hearing is appropriate in a proceeding to terminate parental rights based on mental illness:

Although, in the context of a proceeding pursuant to Social Services Law § 384-b to terminate parental rights based on mental illness, a separate dispositional hearing is not necessarily required in every case … the circumstances of a particular case may warrant a dispositional hearing such that a court’s determination to forgo such a hearing constitutes an improvident exercise of discretion … . Here, the evidence adduced at the fact-finding hearing indicated that the mother consistently continued her treatment, successfully completed parenting classes, and regularly visited the subject child. Furthermore, the record indicated that the subject child, who is now 13 years old, has long opposed adoption and has expressed a desire to maintain a close relationship with her mother. Under these circumstances, the court should have granted the mother’s motion for a dispositional hearing so that the parties could introduce evidence as to which of the dispositional alternatives would be in the best interests of the child… . Matter of Christina LN, 2014 NY Slip Op 00361, 2nd Dept 1-22-14

 

2009 Statute Setting Aside Money for Increased Judicial Compensation Did Not Constitute a Pay Raise for Judges

The Second Department, in a full-fledged opinion by Justice Miller, determined that a 2009 law which set aside $51 million for increases in judicial pay did not increase judicial compensation.  The plaintiffs, judges and justices, argued that the legislation effected a pay raise because it did not reference the need for any future legislation:

To accept the plaintiffs’ argument would require us to conclude that the Legislature intentionally deleted what would have been explicit amendments to the salary schedule set forth in article 7-B of the Judiciary Law so that judicial compensation could be adjusted by utilizing the doctrine of repeal by implication, in conjunction with the implementation of the deleted salary schedules… . Pines v State of New York, 2014 NY Slip Op 00335, 2nd Dept 1-22-14

 

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Analytical Criteria for Stipulation of Settlement Which Is Incorporated But Not Merged

In finding that a stipulation of settlement did not obligate the parties to file joint income tax returns, the Second Department explained the analytical criteria to be applied to a stipulation that is incorporated but not merged into a judgment of divorce:

” A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation'” … . ” Where such an agreement is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence'” … . “A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning” … . “Moreover, a court cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation”… . Tamburello v Tamburello, 2014 NY Slip Op 00342, 2nd Dept 1-22-14

 

Question of Fact About Negligent Supervision at Skating Rink

The Second Department determined there was a question of fact whether injury incurred at defendant’s skating rink was the result of defendant’s negligent supervision:

Those charged with supervising a skating rink cannot be held liable for an injury if the act precipitating the injury was so sudden that no amount of supervision could have averted the accident … . Thus, where reckless behavior that is over and above the usual dangers inherent in the activity of skating is claimed to have caused the injury, the issue of whether the proprietor was negligent in supervising the skaters turns on whether the proprietor had sufficient notice of the allegedly reckless conduct so as to permit it to prevent the injury through the exercise of adequate supervision … . The duration and nature of the allegedly reckless conduct are factors that bear on this issue… .  Fader v Town of Oyster Bay, 2014 NY Slip Op 00324, 2nd Dept 1-22-14

 

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Counsel’s Expressed Objections to His Client’s Motion to Withdraw His Guilty Plea Required the Assignment of New Counsel

The Second Department determined defendant should have been assigned a different attorney after his attorney expressed objections to the defendant’s motion to withdraw his guilty plea:

Assigned counsel expressed his opinion that the defendant should “maintain his plea” and informed the court that he didn’t “feel that [he] could represent [the defendant] at any further proceedings.” The defendant’s right to counsel was adversely affected when his attorney took a position adverse to the defendant’s with respect to that branch of the defendant’s motion which was to withdraw his plea of guilty to attempted use of a child in a sexual performance … . The County Court should have assigned a different attorney to represent the defendant before it determined that branch of the defendant’s motion… . People v Duart, 2014 NY Slip Op 00373, 2nd Dept 1-22-14

 

Under the Circumstances, One Incident Involving Corporal Punishment Did Not Demonstrate Neglect

The Second Department affirmed Family Court’s finding that the Administration for Children’s Services (ACS) did not demonstrate father had neglected his 14-year-old child by using excessive corporal punishment.  Father had struck the child with a belt when she refused to give him her cell phone:

Parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare. However, the use of excessive corporal punishment constitutes neglect … . The petitioner has the burden of proving neglect by a preponderance of the evidence … . Although a single incident of excessive corporal punishment may suffice to support a finding of neglect, there are instances where the record will not support such a finding, even where the parent’s use of physical force was inappropriate … . Under the circumstances presented here, the Family Court correctly found that ACS failed to establish by a preponderance of the evidence that the father neglected Anastasia by virtue of his infliction of excessive corporal punishment upon her. ACS failed to establish that the father intended to hurt Anastasia, or that his conduct demonstrated a pattern of excessive corporal punishment … . There was insufficient evidence that Anastasia suffered the requisite impairment of her physical, mental, or emotional well-being to support a finding of neglect … . Given Anastasia’s age, the circumstances under which the altercation occurred, and the isolated nature of the father’s conduct, the court did not err in dismissing the petitions… . Matter of Anastasia L–D, 2014 NY Slip Op 00226, 2nd Dept 1-15-14

 

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Motion to Vacate a Conviction Can Be Based Upon a Freestanding Claim of Actual Innocence—All Reliable Evidence, Even If Previously Barred at Trial or After Prior Motions to Vacate, May Be Presented at the Hearing

In a comprehensive opinion by Justice Hinds-Radix, the Second Department determined that a CPL 440 motion to vacate a conviction can be based upon a “freestanding claim of actual innocence.”  The defendant, who had brought several unsuccessful 440 motions, was deemed to have presented sufficient evidence of actual innocence to justify a hearing, in which all reliable evidence previously barred could be presented and considered:

The Due Process Clause in the New York State Constitution provides “greater protection than its federal counterpart as construed by the Supreme Court” … . Since a person who has not committed any crime has a liberty interest in remaining free from punishment, the conviction or incarceration of a guiltless person, which deprives that person of freedom of movement and freedom from punishment and violates elementary fairness, runs afoul of the Due Process Clause of the New York Constitution (see NY Const, art I, § 6… ). Moreover, because punishing an actually innocent person is inherently disproportionate to the acts committed by that person, such punishment also violates the provision of the New York Constitution which prohibits cruel and unusual punishments (see NY Const, art I, § 5…). Thus, we conclude that a freestanding claim of actual innocence may be addressed pursuant to CPL 440.10(1)(h), which provides for vacating a judgment which was obtained in violation of an accused’s constitutional rights… . * * *

At the hearing, all reliable evidence, including evidence not admissible at trial based upon a procedural bar—such as the failure to name certain alibi witnesses in the alibi notice—should be admitted … . If the defendant establishes his actual innocence by clear and convincing evidence, the indictment should be dismissed pursuant to CPL 440.10(4), which authorizes that disposition where appropriate. There is no need to empanel another jury to consider the defendant’s guilt where the trial court has determined, after a hearing, that no juror, acting reasonably, would find the defendant guilty beyond a reasonable doubt.  People v Hamilton, 2014 NY Slip Op 00238, 2nd Dept 1-15-14

 

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Reversible Error to Allow Prosecutor to Question Defendant About His Post-Arrest Silence

The Second Department reversed defendant’s conviction because the prosecutor questioned him about his post-arrest silence:

…[T]he Supreme Court erred when it permitted the prosecutor to question the defendant about his post-arrest silence. Generally, a defendant’s post-arrest silence cannot be used for impeachment purposes … . Further, ” an individual’s pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth’ while the risk of prejudice is substantial'” … .

Here, over defense counsel’s objection, the prosecutor was permitted to impeach the defendant’s testimony with his failure to offer an exculpatory version of the events to the police. Although the defendant initially responded to certain questions asked by the police, he then invoked his right to remain silent and offered no information “narrat[ing] the essential facts of his involvement in the crime” … . Accordingly, the Supreme Court erred in allowing the prosecutor to pursue this line of inquiry… . People v Theodore, 2014 Slip Op 00246, 2nd Dept 1-15-14

 

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