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Resort to Contempt for Failure to Make Payments Appropriate

In finding the resort to contempt for failure to make payments pursuant to a judgment in a matrimonial action was appropriate, the Second Department explained the criteria:

Pursuant to Domestic Relations Law § 245, where a spouse fails to make payments of money pursuant to an order or judgment entered in a matrimonial action, the aggrieved spouse may apply to the court to punish the defaulting spouse for contempt, but only if “it appears presumptively, to the satisfaction of the court,” that payment cannot be enforced by other means such as enforcement of a money judgment or an income execution order (Domestic Relations Law § 245…). In order to punish the defaulting spouse for contempt, the aggrieved spouse is not required to exhaust all alternative remedies; proof that alternative remedies would be ineffectual is sufficient … . Here, the defendant satisfied that burden… . Longman v Longman, 2013 NY Slip Op 06664, 2nd Dept 10-16-13

 

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Waiver of Appeal Not Effective

In finding the defendant did not effectively waive his right to appeal, the Second Department explained:

…[T]he record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The defendant’s purported waiver of the right to appeal is unenforceable, as the record does not indicate that he had ” a full appreciation of the consequences'” of such waiver … . While the defendant signed a written waiver, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … . Accordingly, in the absence of a knowing, voluntary, and intelligent waiver of the right to appeal, the defendant retained his right to challenge the denial of that branch of his omnibus motion which was to suppress identification testimony… . People v Crawford, 2013 NY Slip Op 06705, 2nd Dept 10-16-13

 

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Sexual Offense Convictions Reversed as Against the Weight of the Evidence—Too Many Inconsistencies and Contradictions in Proof

The Second Department reversed defendant’s convictions on sexual offenses as against the weight of the evidence:

The testimony of the prosecution’s witnesses failed to provide a credible foundation for the defendant’s convictions due to numerous inconsistencies and contradictions. * * *

…[T]the prosecution’s witnesses testified that the defendant and the mother separated in 2002, and, at the time, the defendant had already moved out of the home where the abuse allegedly took place. Thus, many of the alleged incidents of abuse took place after the defendant had moved out of the home and no longer had a key to it. From 2003 to 2005, a restraining order that the mother obtained against the defendant was in effect, and the mother confirmed that, during one period of time in 2004, the defendant conducted all of his visits with the children outside of the home. The testimony of the prosecution’s witnesses was generally inconsistent as to whether, during the other visits, the defendant stayed alone with the children in the mother’s home, or whether the grandmother or the mother was always present. In any event, although the younger stepdaughter alleged that the defendant molested her twice per week between 2000 and 2004, the trial testimony clearly established that the defendant’s access to the children was often limited after he moved out of the mother’s home in 2002.  People v McMitchell, 2013 NY Slip Op 06713, 2nd Dept 10-16-13

 

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Robbery Conviction Against Weight of Evidence—Hand In Pocket Not Evidence of Threat to Use Force

In reversing the defendant’s robbery conviction as against the weight of the evidence, the Second Department determined the fact that defendant’s hand was in his pocket did not support the “threat to use immediate physical force” element of the offense:

This Court has held that where an unarmed person “positions his hand in his pocket in a manner that is intended to convey to his victim the impression that he is holding a firearm,” that qualifies as displaying what appears to be a gun … . Since the defendant here admitted to knowingly entering the warehouse with the intent to commit a crime therein, the acquittal of burglary in the second degree could only be based upon the People’s failure to prove that the defendant displayed what appeared to be a firearm, or, in other words, upon the People’s failure to prove that the defendant positioned his hand in his pocket in a manner intended to convey to the complainants the impression that he was holding a gun.

The trial court’s factual finding that the defendant did not display what appeared to be a firearm is supported by the record. The trial court, however, failed to give that finding the proper weight with respect to the crime of robbery in the third degree … . If the People failed to prove that the defendant displayed what appeared to be a firearm by holding his hand in his pocket, then there was no basis on which the trial court could conclude that the defendant’s conduct of holding his hand in his pocket constituted a threat to use immediate physical force upon the complainants in order to overcome their resistance. Accordingly, the verdict of guilt with respect to robbery in the third degree was against the weight of the evidence, and we vacate that conviction and the sentence imposed thereon… .  People v Johnson, 2013 NY Slip Op 06709, 2nd Dept 10-16-13

 

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In SORA Proceeding, Offender Did Not Provide Sufficient Proof of Exceptional Response to Treatment

The Second Department noted that while an offender’s response to treatment can be a mitigating factor supporting a downward departure in a SORA proceeding, there was insufficient evidence of an exceptional response to treatment in this case:

A downward departure from a sex offender’s presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the Sex Offender Registration Act (hereinafter SORA) Guidelines … . A defendant seeking a downward departure has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” … .

Here, the defendant identified an appropriate mitigating factor that could provide a basis for a discretionary downward departure (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]… .). In this regard, the SORA Guidelines recognize that “[a]n offender’s response to treatment, if exceptional, can be the basis for a downward departure” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]…). However, the defendant failed to establish, by a preponderance of the evidence, the facts in support of its existence… . People v Guzman, 2013 NY Slip Op 06671, 2nd Dept 10-16-13

 

Substitution of Candidate Invalid

The Second Department determined a substitution of a candidate for the county legislature, based on the failure of the initial candidate (Roth) to meet residency requirements, was invalid because the substitution was made by the Committee to Fill Vacancies and not pursuant to Election Law 6-148(3):

The vacancy at issue here was created at the time of Roth’s nomination, when he still did not reside in the district. This constituted a vacancy in nomination rather than in designation. Election Law § 6-148(3) states, in relevant part, as follows: “A vacancy in a nomination made at a primary . . . may be filled by a majority of the members, of the party committee or committees last elected in the political subdivision in which the vacancy occurs.”

Here, since Roth’s disqualification created a vacancy made in a nomination at a primary, any substitution should have been made pursuant to Election Law § 6-148(3), not by the Committee to Fill Vacancies. “After the primary election has been held the committee named in the designating petition has no function and is without authority” … . The “statute is explicit” that the procedure outlined in Election Law § 6-148(3) governs a vacancy in a nomination that has been made at a fall primary … . Since the purported substitution was not made in accordance with Election Law § 6-148(3), it was invalid.  Matter of Venditto v Roth, 2013 NY Slip Op 06699, 2nd Dept 10-16-13

 

Provision Requiring Nonincumbents to Reside in District Does Not Violate Equal Protection

The Second Department determined that a charter provision requiring nonincumbents (here, Shapiro) to reside in the legislative district at the time of their nomination for the county legislature does not violate the equal protection clause:

Shapiro contends that the residency requirement for nominees as set forth in the Charter is unconstitutional and, thus, he should not have been disqualified. In particular, Shapiro challenges § 112(3) of the Charter, which grants incumbents one year to move into a newly drawn district following a “readjustment or alteration of the county legislative district.” Shapiro argues that the Charter, in requiring nonincumbents to reside in the legislative district at the time of their nomination, does not afford nonincumbents the same opportunity. “Legislative enactments enjoy a strong presumption of constitutionality . . . [and] parties challenging a duly enacted statute face the initial burden of demonstrating the statute’s invalidity beyond a reasonable doubt'”… . Based on the record before us, Shapiro failed to meet his initial burden of demonstrating beyond a reasonable doubt that the Charter’s residency provisions violated the Equal Protection Clauses of the United States Constitution (US Const, 14th Amend, § 1) or the New York Constitution (NY Const, art I, § 11). Matter of Becker v Shapiro, 2013 NY Slip Op 06679, 2nd Dept 10-16-13

 

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Board of County Legislators is Necessary Party Re: Legality of Local Law

The Second Department determined the Board of County Legislators was a necessary party in an action concerning the legality of a local law enacted by the Board:

A challenge to the procedures by which local legislation is enacted should be raised in a CPLR article 78 proceeding against the body which enacted it … . In view of the defendants’ challenge to the validity of the procedures by which the local law was enacted, the Board, as the body that enacted the local law, was a necessary party (see CPLR 1001[a]…). However, it appears that there are legal impediments to the defendants’ commencement of an action or proceeding against the Board without the Board’s consent (see Westchester County Charter § 158.11[3]). Under these circumstances, in the interest of fairness and judicial economy, we join the Board as a necessary party …, and direct the plaintiffs to effect service of process upon the Board, and serve the Board with all appropriate papers. Matter of Jenkins v Astorino, 2013 NY Slip Op 06684, 2nd Dept 10-16-13

 

Second Summary Judgment Motion Properly Denied—Not Based on Newly Discovered Evidence

The Second Department affirmed Supreme Court’s denial of a motion for summary judgment because it was the second such motion and, although it included new deposition testimony, it did not include evidence that met the definition of “newly discovered:”

“Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause” … . Although, in this context, newly discovered evidence may consist of “deposition testimony which was not elicited until after the date of a prior order denying an earlier motion for summary judgment” …, such evidence is not “newly discovered” simply because it was not submitted on the previous motion …. Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means… . Vinar v Litman, 2013 NY Slip Op 06675, 2nd Dept 10-16-13

 

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Ad on Internet, Together With Communications With Florida Medical Group, Did Not Confer Long-Arm Jurisdiction Over the Group in a Malpractice Action Based On Surgery Done in Florida

In a full-fledged opinion by Justice Sgroi, over two dissenters, the Second Department determined that an ad on the Internet by a Florida medical group (LSI) and the group’s website, together with communications between the New York plaintiff and the Florida group, were insufficient to provide New York with long-arm jurisdiction over a medical malpractice case brought by the plaintiff who had undergone surgery in Florida:

…[I]t is not the number of contacts which is determinative of whether a defendant purposely availed itself of the benefits and privileges of conducting business in New York. Each jurisdictional inquiry pursuant to CPLR 302(a)(1) will turn upon the examination of the particular facts of the case, “[a]nd although determining what facts constitute purposeful availment’ is an objective inquiry, it always requires a court to closely examine the defendant’s contacts for their quality” .. . “Purposeful activities are those with which a defendant, through volitional acts avails itself of the privilege of conducting activities with the forum State, thus invoking the benefits and protections of its laws” … . “Whether a non-domiciliary has engaged in sufficient purposeful activity to confer jurisdiction in New York requires an examination of the totality of the circumstances” … .

In the case at bar, the “totality of circumstances” does not provide the plaintiff with a basis for imposing long-arm jurisdiction over the defendants. Initially, we note that personal jurisdiction cannot be based upon LSI’s website, since, as far as the record reveals, this website was informational only and, thus, “passive” in nature. There is no indication that the website permitted a user thereof to purchase any goods or services from LSI, that it contained any online form application process, or that it allowed any interaction through the site … . “When a website is passive . . . plaintiffs may have to prove something more’ to justify the exercise of personal jurisdiction–that is, plaintiffs must show that defendant purposefully (albeit electronically) directed his activity in an substantial way to the forum state'” … .

This Court has also recently held that such a passive website, without more, cannot be used as the basis for the assertion of long-arm personal jurisdiction. Paterno v Laser Spine Inst, 2013 NY Slip Op 06669, 2nd Dept 10-16-13

 

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