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Libel Action Against Reporter Dismissed—No Showing of Gross Irresponsibility in Gathering and Verifying Information

In dismissing a libel action against a reporter who erroneously alleged in a newspaper story that plaintiff used money collected from students for workbooks to buy faculty lunches and an air conditioner for the faculty workroom, the Second Department wrote:

“[W]hen the claimed defamation arguably involves a matter of public concern, a private plaintiff must prove that the media defendant acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties'”…. The “standard of gross irresponsibility’ demands no more than that a publisher utilize methods of verification that are reasonably calculated to produce accurate copy” ….

Here, the record reveals that …some of the factual claims in the article and accompanying editorial were true, some of the claims were not, … .However, we nevertheless conclude that the defendants met their prima facie burden of demonstrating their entitlement to judgment as a matter of law by establishing that the article involved matters of public concern …, and that [the reporter] did not act in a grossly irresponsible manner while gathering and verifying information for the article…. Matovik v Times Beacon Record Newspapers,. 2013 NY Slip Op 05051, 2nd Dept 7-3-13

 

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Right of Confrontation Not Violated by Results of Tests by Persons Who Were Not Called as Witnesses

In determining defendant’s right to confrontation was not violated by evidence of DNA testing:

The court properly admitted files prepared by the New York City Medical Examiner’s Office containing DNA profiles derived from the testing of evidence recovered from the crime scenes, since the documents containing the DNA profiles, which were prepared prior to the defendant’s arrest, “did not, standing alone, link [him] to the crime” …. The testimony of the People’s expert witness established that she conducted the critical analysis at issue by comparing the DNA profiles derived from the crime scene evidence to the defendant’s DNA profile and concluding that all of the profiles matched…. Moreover, the DNA profile generated from the swab of the defendant’s cheek, standing alone, shed no light on the issue of the defendant’s guilt in the absence of the expert’s testimony that it matched the profiles derived from the crime scene evidence….  People v Washington, 2013 NY Slip Op 05096, 2nd Dept 7-3-13

TESTIMONIAL HEARSAY

 

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Writ of Coram Nobis Granted—Ineffective Assistance of Appellate Counsel

The Second Department granted defendant’s writ of coram nobis to vacate (dismissing the indictment), on the ground of ineffective assistance of appellate counsel.  Among the grounds for appeal not raised were: repugnant verdicts, erroneous and missing jury charges (including the statutory elements), failure to give a limiting charge with respect to evidence of defendant’s prior criminal record, and prosecutorial misconduct.  People v Morales, 2013 NY Slip Op 05094, 2nd Dept 7-3-13

 

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Judge’s Mistrial Order Precluded Retrial—Double Jeopardy

In precluding a retrial on double jeopardy grounds after the trial judge ordered a mistrial over defendant’s objection (granting the Article 78 prohibition petition), the Second Department explained the relevant criteria:

In a jury trial, once the jury is empaneled and sworn, jeopardy attaches (see CPL 40.30[1][b];..), and the defendant has a “valued right to have his [or her] trial completed by a particular tribunal” ….  ” [W]hen a mistrial is granted over the defendant’s objection or without the defendant’s consent, double jeopardy will, as a general rule, bar retrial'”…. “However, the right to have one’s case decided by the first empaneled jury is not absolute, and a mistrial granted as the product of manifest necessity will not bar a retrial”… .”Manifest necessity” means “a high degree of necessity”; “the reasons underlying the grant of a mistrial must be necessitous, actual and substantial” …. ” Even if the reasons for granting a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to granting a mistrial'”…. Mistrials premised on the prejudicial effect of improper evidence or argument are entitled to “great deference” …, since “the Trial Judge, better than any other, . . . can detect the ambience of partiality”…. Nonetheless, the trial judge must “temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his [or her] confrontation with society through the verdict of a tribunal he [or she] might believe to be favorably disposed to his [or her] fate” … . Matter of Taylor v Dowling, 2013 NY Slip Op 05089, 2nd Dept 7-3-13

 

Court Can Not Order Treatment as Condition of Future Visitation—Okay to Order Treatment as Component of Supervised Visitation

The Second Department noted that Family Court should not have ordered a parent to undergo treatment as a condition of future visitation.  Rather treatment should have been ordered as a component of supervised visitation:

…”[A] court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation”…. Thus, the Family Court should have directed the mother to enroll in an assisted outpatient treatment program as a component of supervised visitation. Matter of Torres v Ojeda, 2013 NY Slip Op 05091, 2nd Dept 7-3-13

 

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Consent Order Not Appealable; Open Court Stipulation Valid

The Second Department noted that an order made on consent is not appealable and affirmed Family Court’s determination that a stipulation entered into in open court was valid:

Stipulations of settlement are favored by the courts and a stipulation made on the record in open court will not be set aside absent a showing that it was the result of fraud, overreaching, mistake, or duress”…. Here, the Family Court conducted a proper allocution of the mother, determining that she understood the terms of the stipulation, that she had sufficient time to consult with her attorney, and that she consented to the terms of the stipulation, and thus properly determined that she voluntarily and knowingly accepted the terms of the stipulation…. The mother’s contentions in support of her motion that she felt “forced into settling” and “misle[]d” by her attorney, and that she “did not fully understand what [she] was agreeing to” are insufficient to establish a claim of mistake or duress so as to warrant setting aside the stipulation of settlement… . Matter of Strang v Rathbone, 2013 NY Slip Op 05088, 2nd Dept 7-3-18

 

 

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Factual Question About Whether Family Court Had Jurisdiction Over Visitation Modification Where Supreme Court Originally Ordered Visitation

In remitting the matter to Family Court, the Second Department determined Family Court should have examined the evidence to determine whether it had jurisdiction over a petition to modify visitation where the initial visitation determination was part of a divorce action in Supreme Court:

The Family Court erred in declining to sign the order to show cause accompanying the father’s petition to modify visitation …. Since the initial visitation determination in this matter was made as part of a stipulation of settlement entered into during the parties’ divorce proceedings before the Supreme Court, it was error for the Family Court to summarily decline to sign the order to show cause on jurisdictional grounds. Instead, the Family Court should have signed the order to show cause and then directed the parties to submit evidence on the issue of whether the Family Court retained exclusive, continuing jurisdiction over the visitation issues…. Matter of Ramirez v Gunder, 2013 NY Slip Op 05086, 2nd Dept 7-3-13

 

Criteria for Allowing Parent Relocation

In affirming Family Court’s allowing a parent’s relocation, the Second Department explained the criteria:

A parent seeking to relocate bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests …. In determining whether relocation is appropriate, the court must consider a number of factors, including the children’s relationship with each parent, the effect of the move on contact with the noncustodial parent, the degree to which the lives of the custodial parent and the child may be enhanced economically, emotionally, and educationally by the move, and each parent’s motives for seeking or opposing the move …. Inasmuch as “[t]he weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved” …, the Family Court’s credibility determinations are entitled to deference and its decision will be upheld if supported by a sound and substantial basis in the record… . Matter of Pietrafesa v Pietrafesa, 2013 NY Slip Op 05082, 2nd Dept 7-3-13

 

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Family Court committed reversible error by depriving father of his right to self-representation

In determining Family Court committed reversible error by depriving father of his right to self-representation, the Second Department wrote:

The father, as a respondent in a proceeding pursuant to Family Court Act article 6, had a right to be represented by counsel (see Family Ct Act § 262[a][iii];…). A party, however, may waive the right to counsel and opt for self-representation… .. Before permitting a party to proceed pro se, the court must determine that the party’s decision to do so is made knowingly, intelligently, and voluntarily …, by conducting a “searching inquiry” of that party…. Where a respondent has made a knowing, intelligent, and voluntary choice to represent himself or herself, “forcing a lawyer upon [him or her] is contrary to his [or her] basic right to defend himself [or herself]” … .  Matter of Massey v Van Wyen, 2013 NY Slip Op 05078, 2nd Dept 7-3-13

 

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Not Enough Evidence Before Family Court to Make Custody Determination

In remitting the matter to Family Court for a hearing in a custody proceeding with controverted allegations, the Second Department noted that, although a hearing is not always required, there was not enough evidence before the court for an informed determination in this case:

” [A]s a general rule, it is error as a matter of law to make an order respecting custody based upon controverted allegations without the benefit of a full hearing'”…. ” Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed'”…. However, ” it is not necessary to conduct such a hearing where the court already possesses sufficient relevant information to render an informed determination in the child’s best interest'” … .Under the circumstances of this case, the Family Court lacked sufficient information to render an informed determination as to the best interests of the subject children … . Matter of Labella v Murray, 2013 NY Slip Op 05076, 2nd Dept 7-3-13

 

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