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“Anders” Brief Rejected

In rejecting an “Anders” brief, the Second Department noted:

The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738) was deficient. The body of the brief—which was only 1½ pages in length—did not contain a statement of facts, and did not contain any case citations. The brief failed to analyze potential appellate issues or highlight facts in the record that might arguably support the appeal … . Since the brief does not demonstrate that assigned counsel acted “as an active advocate on behalf of his . . . client” … or that he diligently examined the record, we must assign new counsel to represent the appellant… .  People v McNair, 2013 NY Slip Op 06389, 2nd Dept 10-2-13

 

Criteria for Suspension of Judgment in Neglect Proceeding

In reversing Family Court, the Second Department explained the criteria for a suspension of judgment in a permanent neglect proceeding:

A dispositional order suspending judgment is a dispositional alternative, upon a finding of permanent neglect, that affords “a brief grace period designed to prepare the parent to be reunited with the child” … . In essence, an order suspending judgment provides the parent with a second chance, but it may be utilized only when the court determines that a second chance is in the child’s best interests (see Family Ct Act §§ 631, 633…). Moreover, the maximum duration of a suspended judgment is one year, unless the court finds at the conclusion of that period that “exceptional circumstances” require an extension of that period for one additional period of up to one year (Family Ct Act § 633[b]…). * * *

Family Court Act § 633© provides that an order suspending judgment “must set forth the . . . terms and conditions of the suspended judgment” (see also 22 NYCRR 205.50[b]) so that the Family Court may determine whether the parent has violated it … . Matter of Jesse D…, 2013 NY slip Op 06001, 2nd Dept 9-25-13

 

Emergency Doctrine Explained; Admissibility of Deposition Excerpts Re: Summary Judgment Motion Explained; Bicyclist Injured When Path Allegedly Blocked to Protect Child

The Second Department reversed Supreme Court’s grant of summary judgment to the defendants. The plaintiff-bicyclist was injured when, it is alleged, one of the defendants stepped into the bicyclist’s path to protect children who were crossing the street. The court explained the admissibility requirements for excerpts of deposition testimony and an unsworn police report, as well as the emergency doctrine:

The unsigned excerpts of …defendants’ deposition testimony, which the defendants submitted in support of their motion, were admissible under CPLR 3116(a) since they were submitted by the party deponents themselves and, accordingly, those transcripts were adopted as accurate by those deponents … . Additionally, although the defendants initially failed to submit the certification page of the depositions of nonparties …, as well as those for the depositions of …defendants, they submitted those certifications in reply papers in response to the plaintiffs’ arguments in opposition … . Under the circumstances of this case, the late submission did not prejudice the plaintiffs, and the Supreme Court properly considered these certifications …. Furthermore, although unsigned, as noted above, the transcripts … were certified, and the plaintiffs did not raise any challenges to their accuracy. Thus, the transcripts qualified as admissible evidence for purposes of the defendants’ motion for summary judgment … . However, the unsigned, uncertified excerpt of the injured plaintiff’s deposition was not in admissible form, nor was the uncertified, unsworn police report submitted by the defendants. Accordingly, neither of these items should have been considered in determining whether the defendants satisfied their prima facie burden … . * * *

“Under the emergency doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context” … . ” This is not to say that an emergency automatically absolves one from liability for his [or her] conduct. The standard then still remains that of a reasonable [person] under the given circumstances, except that the circumstances have changed'” … . ” Both the existence of an emergency and the reasonableness of a party’s response thereto will ordinarily present questions of fact'” … . Pavane v Marte, 2013 NY Slip Op 05991, 2nd Dept 9-25-13

 

14-Day Election Law Statute of Limitations, Not Article 78 Statute of Limitations, Applied

The Second Department determined that a putative Article 78 proceeding seeking to exclude candidates from the ballot based upon alleged violations of the Election Law was governed by the Election Law, not the Article 78, statute of limitations:

Notwithstanding the characterization of this proceeding as one pursuant to CPLR article 78, the petitioners seek to exclude candidates from the ballot based on their alleged failure to comply with the nomination and designation procedures of Election Law article 6, as supplemented by the general provisions of Election Law § 1-106. Accordingly, this proceeding is governed by the statute of limitations set forth in Election Law § 16-102(2) … . Since it is undisputed that this proceeding was not commenced within 14 days after the last day to file the designating and opportunity-to-ballot petitions at issue, as required by Election Law § 16-102(2), the Supreme Court properly dismissed the proceeding as untimely.  Matter of Ciotti v Westchester County Bd of Elections, 2013 NY Slip Op 06000, 2nd Dept 9-25-13

 

Concurrent, Not Consecutive, Sentences Should Have Been Imposed Where “Actus Reus” Was a Single, Inseparable Act

The Second Department corrected a sentence which illegally imposed consecutive, as opposed to concurrent, terms of imprisonment.  The defendant lured a 16 year-old girl to his apartment where they had consensual sex.  Then defendant then allowed the co-defendants to go into the bedroom where they had sex with her.  The court explained:

The imposition of consecutive sentences on the convictions of rape in the first degree, criminal sexual act in the first degree, and sexual abuse in the first degree, was illegal, except with respect to the sentence imposed on the conviction of criminal sexual act in the first degree under count 11. “Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” … . Moreover, “a defendant may not waive the right to challenge the legality of a sentence” … .

Section 70.25 of the Penal Law provides that “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently” (Penal Law § 70.25[2]). “Under either of those circumstances, the court has no discretion; concurrent sentences are mandated” … . In determining whether two crimes were separate and distinct for the purposes of imposing consecutive or concurrent sentences, “it is the acts of the defendant that control” … . When the actus reus, or the ” wrongful deed that comprises the physical components of a crime'” …, is a “single inseparable act” that violates more than one statute, single punishment must be imposed … .

Here, the actus reus committed by the defendant in concert with each codefendant was “a single, inseparable act” …. With respect to each codefendant, the defendant’s actus reus violated more than one statute due solely to the acts committed by the codefendant after the defendant had already completed his role. Each actus reus of the defendant “warrants [only] a single punishment” ….  People v Singh, 2013 NY Slip Op 06033, 2nd Dept 9-25-13

 

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Jury Should Have Accepted Extreme Emotional Disturbance Affirmative Defense

In a full-fledged opinion by Justice Cohen, over a dissent, the Second Department determined the jury’s failure to reduce the defendant’s conviction to manslaughter because he was under the influence of extreme emotional disturbance when he killed his girlfriend was against the weight of the evidence.  The opinion describes the nature and causes of the defendant’s emotional state in great detail. The court explained the “extreme emotional disturbance” affirmative defense as follows:

We begin our analysis by examining the nature and scope of the affirmative defense of extreme emotional disturbance. Penal Law §§ 125.25(1)(a) and 125.20(2), “[r]ead in tandem,” together “provide that a defendant who proves by a preponderance of the evidence that he or she committed a homicide while under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse’ is guilty of manslaughter and not murder” … . The defense of extreme emotional disturbance does not negate intent (see Penal Law § 125.20[2]…). Instead, the “defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although [ ] not free from responsibility for [the] crime, [defendant] ought to be punished less severely” … . Although the defense of extreme emotional disturbance is “an outgrowth of the heat of passion’ doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder,” the defense is broader than the “heat of passion” doctrine, and was intended to apply to a “wider range of circumstances” … .

The defense of extreme emotional disturbance comprises two elements. The first element is “wholly subjective” and”involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham” … . The subjective element “focuses on the defendant’s state of mind at the time of the crime and requires sufficient evidence that the defendant’s conduct was actually influenced by an extreme emotional disturbance” … . The subjective element is generally associated with a loss of self-control … . The second element, which the Court of Appeals has acknowledged to be “more difficult to describe,” requires that an objective determination be made as to whether there was a reasonable explanation or excuse for the emotional disturbance … . “Whether such a reasonable explanation or excuse exists must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been'” … . People v Sepe, 2013 NY Slip Op 06030, 2nd Dept 9-25-13

 

Sentencing Court Can Correct Illegal Sentence If Within Initially-Stated Range

The Second Department explained that the trial court can properly resentence a defendant to correct an illegal sentence as long as the new sentence is within the initially-stated range.  Here, after sentencing defendant to an indeterminate term of imprisonment, the court realized it was required to sentence defendant to a determinate term and postrelease supervision:

Under the circumstances of this case, the County Court properly resentenced the defendant. A trial court has the inherent power to correct an illegal sentence, over a defendant’s objection, where the corrected sentence falls within the range initially stated by the court …. Here, after the County Court learned that the indeterminate sentence imposed on the defendant for the conviction of criminal sale of a firearm in the third degree was illegal, it exercised its inherent power to correct the sentence by imposing a determinate term of imprisonment of two years followed by two years of postrelease supervision. This sentence was within the range initially stated by the County Court … . People v Kaufman, 2013 NY slip Op 06020, 2nd Dept 9-25-13

 

Failure to Inform Defendant of the Specific Period of Postrelease Supervision Applicable to the Offense Defendant Pled To Required Vacation of Sentence

Over a dissent, the Second Department determined the failure to advise the defendant of the specific postrelease-supervision aspect of his sentence at the time of the entry of the plea pursuant to a plea agreement required that the sentence be vacated, even though defendant was informed his maximum sentencing exposure included a period of postrelease supervision:

…[A]fter informing the defendant that his maximum sentencing exposure included a period of postrelease supervision, the court extended a specific sentence offer, specifying the range of the terms of imprisonment involved …, and this offer omitted any reference to postrelease supervision. The court has a duty to ensure, at the time a plea of guilty is entered, that the defendant is aware of the terms of the plea …. The County Court’s failure to inform the defendant, at the time he entered his plea of guilty, that his sentence would, in fact, include a period of postrelease supervision, prevented his plea from being entered knowingly, voluntarily, and intelligently. People v Divalentino, 2013 NY Slip Op 06013, 9-25-13

 

Question of Fact Whether Initial Broker Entitled to Commission

The Second Department, over a dissent, determined there was a question of fact about whether a real estate broker was entitled to a commission because it generated a chain of circumstances that proximately led to the sale:

To prevail on its cause of action to recover a commission, the plaintiff is required to prove, inter alia, that it was “the procuring cause of the sale” … . “To establish that a broker was the procuring cause of a transaction, the broker must establish that there was a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation” … . However, “a broker . . . does not automatically and without more make out a case for commissions simply because he [or she] initially called the property to the attention of the ultimate purchaser” … . “Where, as here, the broker is not involved in the negotiations leading up to the completion of the deal, the broker must establish that [it] created an amicable atmosphere in which negotiations proceeded or that it generated a chain of circumstances that proximately led to the sale” … . Talk of the Town Realty v Geneve, 2013 NY Slip Op 05997, 2nd Dept 9-25-13

 

Ten Year Adverse Possession Period Began After Ten Year Permissive Use Period Expired

The Second Department determined that plaintiffs acquired property by adverse possession, even though the initial use of the property was by permission. The permission ceased by statute after ten years, and another ten years of hostile use passed:

A party seeking to obtain title by adverse possession must prove, by clear and convincing evidence, the following common-law requirements of adverse possession: that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years … . Here, only the first element is in dispute. According to the defendants, the plaintiffs’ use of the properties was by permission. * * *

…[A] landlord/tenant relationship existed between the parties and their predecessors and, therefore, RPAPL 531 applies. Since no written lease existed and the admissible evidence established that neither the plaintiffs nor their predecessor paid rent for their use of the properties since July 21, 1981, any permission that may have been granted to the plaintiffs or their predecessor to use the properties effectively ceased after 10 years (see RPAPL 531…). Thus, by operation of RPAPL 531, the plaintiffs’ adverse possession of the properties commenced on July 21, 1991. Under the circumstances of this case, we agree with the Supreme Court that the plaintiffs established their hostile use of the properties for a period of 10 years after the permissive period expired …, and that the plaintiffs were, therefore, entitled to a judgment declaring them to be the owners in fee simple absolute of the subject properties. Auto Gobbler Parts, Inc v Serpico, 2013 NY Slip Op 05977, 2nd Dept, 9-25-13

 

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