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THE JUDGE MISCHARACTERIZED THE EVIDENCE AND EXHIBITED BIAS IN FAVOR OF FATHER IN THIS CUSTODY CASE, THE DETERMINATION WAS REVERSED AND THE MATTER SENT BACK FOR ANOTHER HEARING BEFORE A DIFFERENT JUDGE (THIRD DEPT). ​

The Third Department, reversing the custody determination and remitting the matter for another hearing before a different judge, determined the judge mischaracterized the evidence and exhibited bias in favor of father:

We agree with the mother and the attorney for the child that Family Court’s decision and order misstates and mischaracterizes the record evidence and that the determination lacks a sound and substantial basis in the record. For example, the court determined that a “curious” exchange between the child and a therapist “tended to suggest that the child was confused about her feelings toward her father,” characterized the testimony by the mother’s forensic psychologist who deemed the mother mentally fit as a “brief interlude of comic relief,” and lauded the father’s willingness to undergo penile plethysmograph testing — characterized as “a colonoscopy of the soul” — as “speak[ing] volumes to his actual innocence.” The court went so far as to criticize the forensic expert’s testimony concerning the September 2016 visitation as an example of blending incidents by commenting, “The only blending here . . . is that of pseudoscience with the world’s oldest profession.” The record does not support any of this unfortunate and bizarre commentary.

It is concerning that Family Court wholeheartedly credited the father’s testimony, viewed most — if not all — of the evidence in a light least favorable to the mother …  and diminished the evidence of domestic violence perpetrated by the father against the mother in the child’s presence. Matter of Nicole TT. v David UU., 2019 NY Slip Op 05729, Third Dept 7-18-19

 

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DEFENDANT’S AGGRAVATED CRUELTY TO ANIMALS CONVICTION AFFIRMED; JUSTIFICATION DEFENSE APPLIES ONLY TO PERSONS, NOT ANIMALS; THE PRESENTENCE INTERVIEW AT THE PROBATION DEPARTMENT IS NOT A CRITICAL STAGE OF THE PROCEEDING REQUIRING THE PRESENCE OF DEFENDANT’S ATTORNEY (THIRD DEPT).

The Third Department affirmed defendant’s conviction of aggravated cruelty to animals (Agriculture and Markets Law 353-a) noting that the justification defense (on which the jury was instructed) applies only to persons, not animals. The defendant unsuccessfully argued the presentence report should have been ignored because his attorney was not present during the interview with the Probation Department:

Defendant contends that the court should have disregarded the report in its entirety and ordered a new one because the Probation Department did not abide by counsel’s request to be present for the presentence interview. “New York’s right to counsel applies to every critical stage of the criminal proceeding” … . However, in light of the nonadversarial nature of a routine presentence interview by a probation officer, courts have held that such an interview does not constitute a critical stage of the proceedings … . Therefore, defendant did not have a right to have counsel present during that interview. In any event, County Court granted defendant’s request to strike the portion of the report containing defendant’s statement related to this crime. People v Brinkley, 2019 NY Slip Op 05728, Third Dept 7-18-19

 

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GRAND JURY EVIDENCE SUPPORTED THE MANSLAUGHTER CHARGE BASED UPON THE SALE OF HEROIN WHICH ALLEGEDLY CAUSED THE VICTIM’S DEATH; COUNTY COURT SHOULD NOT HAVE DISMISSED THE MANSLAUGHTER COUNT (THIRD DEPT).

The Third Department, reversing County Court, over a dissent, determined the evidence of manslaughter presented to the grand jury was legally sufficient. Defendant allegedly provided very strong heroin to the victim, causing victim’s death:

“In the context of grand jury proceedings, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt” … . Thus, “if the [People have] established a prima facie case, the evidence is legally sufficient even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements” … . …

… [I]n order to find a defendant guilty of manslaughter in the second degree, the People are required to show that he or she “recklessly cause[d] the death of  another person” (Penal Law § 125.15 [1]). “A person acts recklessly with respect to a result or to a circumstance . . . when he [or she] is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists” … . …

Given defendant’s knowledge of the potency of the drugs that he was distributing and their potential lethality, it is evident that the nature of the risk involved was of such degree “that defendant’s failure to perceive it constituted a gross deviation from the standard of care that a reasonable person would observe in the situation” and that his actions were a sufficiently direct cause of the victim’s death for him to face the judgment of a jury … . People v Gaworecki, 2019 NY Slip Op 05725, Third Dept 7-18-19

 

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DEFENDANT’S WAIVER OF AN APPEAL FROM A JURY VERDICT (AS OPPOSED TO A GUILTY PLEA) WAS VALID (THIRD DEPT). ​

The Third Department, affirming defendant’s conviction, determined a defendant may validly waive an appeal from a jury verdict:

… “[A] defendant may waive his or her right to appeal from a jury verdict” … . The People set forth the terms of the postverdict agreement on the record, including that defendant would waive his right to appeal for a sentencing commitment of time served. County Court then engaged in a thorough colloquy with defendant, during which defendant acknowledged that he had discussed the agreement with counsel to his satisfaction and understood it. County Court explained the right to appeal from the conviction and eventual sentence, distinguished it from the trial rights that defendant had exercised and made clear that defendant was being asked to give it up as part of the agreement. Defendant confirmed that he understood all of this and orally waived his right to appeal. He further executed a written waiver that was handed up prior to sentencing, a document that included assurances that it had been signed by defendant in open court after consulting with defense counsel. We are satisfied from the foregoing that, notwithstanding isolated uses of language more appropriate for a waiver executed as part of a plea agreement, defendant knowingly, voluntarily and intelligently waived his right to appeal … . People v Shanks, 2019 NY Slip Op 05724, Third Dept 7-18-19

 

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THE CLAIM DID NOT ADEQUATELY DESCRIBE THE LOCATION OF CLAIMANT’S SLIP AND FALL AND EVIDENCE SUBMITTED BY THE CLAIMANT IN RESPONSE TO THE MOTION TO DISMISS NEED NOT BE CONSIDERED, CLAIM PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined claimant in this slip and fall case did not meet the pleading requirements of Court of Claims Act 11 and her claim was therefore properly dismissed. Although claimant submitted an aerial map in opposition to the motion to dismiss, only the information in the claim need be considered:

Court of Claims Act § 11 (b) provides that “[t]he claim shall state the . . . place where such claim arose.” Although “absolute exactness” is not required, “a claimant must provide a sufficiently detailed description of the particulars of the claim to enable defendant to investigate and promptly ascertain the existence and extent of its liability”  … . “[D]efendant is not required to ferret out or assemble information that [Court of Claims Act § ] 11 (b) obligates the claimant to allege,” and “[f]ailure to abide by [the statute’s] pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result” … . …

Claimant alleged that she fell “on the exterior stairs/landing located proximate to Moffit Hall and Clinton Dining Hall.” The record establishes, however, that there are three staircases proximate to Moffit Hall and Clinton Dining Hall. Claimant’s contention that the location stated in her claim necessarily referred to the sole staircase/landing between the two buildings is without merit because the claim did not allege that the situs of the accident occurred between the two buildings … . In opposition to the motion to dismiss, claimant submitted an aerial map of where she allegedly fell. However, the aerial map does not cure the pleading defect in her claim because the aerial map was not included in her claim, and defendant is not required to go beyond the claim to ascertain the situs of the injury … . Katan v State of New York, 2019 NY Slip Op 05746, Third Dept 7-18-19

 

ADJUDICATING DEFENDANT A YOUTHFUL OFFENDER FOR ONE CHARGE DID NOT REQUIRE A YOUTHFUL OFFENDER ADJUDICATION FOR AN UNRELATED CHARGE, EVEN THOUGH BOTH CHARGES WERE PART OF A JOINT PLEA AGREEMENT (THIRD DEPT).

The Third Department determined that the youthful offender adjudication for one charge did not require the court to adjudicate defendant a youthful offender for an unrelated charge, even though both charges were subject to a joint plea agreement:

Defendant’s primary contention is that County Court, having adjudicated him as a youthful offender on the unrelated charge, was also required to adjudicate him a youthful offender on the burglary charge. This is incorrect. Defendant relies upon CPL 720.20 (2), which provides, as relevant here, that, “[w]here an eligible youth is convicted of two or more crimes . . . set forth in two or more accusatory instruments consolidated for trial purposes, the court must not find [the youth] a youthful offender with respect to any such conviction . . . unless it finds him a youthful offender with respect to all such convictions” … . Contrary to defendant’s erroneous supposition, the accusatory instruments to which he pleaded guilty, i.e., the superior court informations charging him with burglary and the unrelated crime, were never “consolidated for trial purposes” so as to require a youthful offender adjudication on both or neither of the convictions (CPL 720.20 [2] …). Although both accusatory instruments were ultimately resolved under a joint agreement, defendant pleaded guilty to two separate superior court informations, and the record does not reflect that either party moved to consolidate them, that they were ordered joined for trial or, indeed, that they could have been properly joined (see CPL 200.20 [2], [4]; see also CPL 200.15). Consequently, “the sentencing court was authorized in its discretion to determine that the defendant was a youthful offender with respect to either or both convictions”… , and was not compelled to confer youthful offender status at sentencing on the burglary conviction. People v Turner, 2019 NY Slip Op 05718, Third Dept 7-18-19

 

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FAMILY COURT WAS WITHOUT AUTHORITY TO ISSUE A RESETTLED ORDER WHICH SUBSTANTIALLY CHANGED THE ORIGINAL ORDER AND WHICH WAS ISSUED WITHOUT THE BENEFIT OF TESTIMONY CONCERNING MOTHER’S SERIOUS MENTAL HEALTH AND SUBSTANCE ABUSE PROBLEMS (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the court was without authority to issue a resettled order which substantially changed the original order. The original order, which was issued in the absence of testimony, provided that mother’s mental health and substance abuse problems be monitored by the Monroe County Probation Department. The Department declined because it does not handle custody matters. Family Court then issued the resettled order requiring mental health and substance abuse treatment for mother and allowing grandmother access to mother’s medical records:

“Resettlement of an order is a procedure designed solely to correct errors or omissions as to form or for clarification. It may not be used to effect a substantive change in or to amplify the prior decision of the court” ( …  see CPLR 2221).

… Family Court’s resettled order does “effect a substantive change” and was beyond the court’s authority to issue. The underlying petition included serious substance abuse and mental health allegations, but at no point was any actual testimony taken. These concerns were discussed during the stipulation colloquy before Family Court (Ames, J.), but the court ultimately determined to place the mother on probation subject to standard terms and conditions that did not impose independent evaluation requirements. In addition, the court was not authorized to defer to the probation department the decision as to whether the mother should undergo a substance abuse and/or mental health evaluation …  . The plain fact of the matter is that the colloquy resulting in the oral stipulation was not definitive on the evaluation issue. “To be enforceable, an open court stipulation must contain all of the material terms and evince a clear mutual accord between the parties” … . Although we are mindful of the court’s authority to require a party to undergo an evaluation, the resettled order was issued as a consent order, not as an express directive under Family Ct Act § 251. Given the absence of any record testimony, the resettled order cannot stand. Matter of Joan HH. v Maria II., 2019 NY Slip Op 05737, Third Dept 7-18-19

 

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CLAIMANT PROPERLY DENIED WORKERS’ COMPENSATION BENEFITS BECAUSE CLAIMANT DID NOT OBTAIN THE WORKERS’ COMPENSATION CARRIER’S CONSENT BEFORE SETTLING WITH A THIRD-PARTY (THIRD DEPT).

The Third Department determined the denial of Workers’ Compensation benefits was proper because claimant did not obtain the Workers’ Compensation carriers consent before settling a third-party action arising from the traffic accident:

“Workers’ Compensation Law § 29 (5) requires either the carrier’s consent or a compromise order from the court in which a third-party action is pending for a claimant to settle a third-party action and continue receiving compensation benefits” … . The burden is on the claimant to establish that proper consent was obtained … . “The question of whether a settlement was procured with the proper consent of the carrier is a factual issue for the Board to determine” … . It is “well settled[] that neither [this Court] nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact . . . beyond seeing to it that there is substantial evidence” … .

In support of claimant’s contention that consent for the settlement was properly obtained, he relies on the final sentence in two correspondences sent by the carrier to his third-party counsel stating that the carrier “has no objection to a $50,000 policy limit settlement of the claimant’s bodily injury claim.” Both correspondences, however, also specifically advised that the carrier’s “consent is required prior to settlement or discontinuance of any third-party action” and to “please communicate with [the carrier]” before settlement to arrange for consent and satisfaction of the lien. A review of the entire correspondences and the plain language therein reflects that the carrier anticipated further communication with the third-party counsel prior to consenting to any settlement. Matter of Hisert v Ron Allen Trucking Inc., 2019 NY Slip Op 05735, Third Dept 7-18-19

 

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STATEMENTS POSTED ON AN ELECTION-RELATED FACEBOOK PAGE ABOUT THE OPPOSING CANDIDATE ARE NOT SHIELDED BY IMMUNITY AND ARE ACTIONABLE IN THIS DEFAMATION CASE; TO APPEAL THE DENIAL OF A MOTION TO STRIKE PORTIONS OF A COMPLAINT A MOTION FOR LEAVE TO APPEAL MUST BE MADE (THIRD DEPT).

The Third Department determined statements posted on an election-related Facebook page by defendant, a Sheriff running for County Executive, concerning plaintiff, a Deputy County Executive also running for County Executive, were actionable in this defamation case. The court noted that the defendant’s appeal of the denial of his motion to strike certain paragraphs of the complaint (CPLR 3024) was not before the court because a motion for leave to appeal had not been made (CPLR 5701 [b] [3]):

… [W]e reject defendant’s contention that he is shielded from liability due to absolute immunity. This immunity protects government officials, such as defendant, “with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . As such, plaintiff cannot maintain a defamation claim against defendant based upon statements “emanating from official reports and communications” … . Although defendant was commenting about an investigation being conducted by his office, as well as responding to attacks on the credibility of his office, the documentary evidence in the record establishes that the challenged statements were not posted on the official site of the Chemung County Sheriff. Rather, they were posted on defendant’s campaign Facebook page and another Internet website. Under these circumstances, defendant cannot rely on absolute immunity … .

… The statement that plaintiff was “pilfering free gas from taxpayers” is “susceptible to a defamatory meaning, inasmuch as [it] convey[s], at a minimum, serious impropriety and, at worst, criminal behavior” … . Such statement also “has a precise meaning that is capable of being proven true or false” … . …

The complaint alleged that defendant published the false statements and that they “were made in bad faith, with reckless disregard for the truth” and “tend[ed] to subject plaintiff to public contempt, ridicule, aversion, and disgrace.” In view of these allegations, as well as the specific statements at issue, we are satisfied that plaintiff sufficiently pleaded malice … . Krusen v Moss, 2019 NY Slip Op 05733, Third Dept 7-18-19

 

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PLANNING BOARD HAD THE AUTHORITY TO RECONSIDER A SUBDIVISION AND SITE PLAN APPROVAL BASED UPON NEW INFORMATION, DESPITE THE FACT THE APPROVAL HAD BEEN RESCINDED (THIRD DEPT).

The Third Department determined that the village planning board had the authority to reaffirm a subdivision and site plan approval based upon new evidence, despite the fact the plan had previously been rescinded:

Petitioners argue that the Village Planning Board lacked the authority to reaffirm the 2010 subdivision and site plan approval. We disagree. “Despite the lack of statutory authority, a planning board may reconsider a determination if there has been a material change of circumstances since its initial approval of the plat or new evidence is presented” (Matter of 1066 Land Corp. v Planning Bd. of Town of Austerlitz, 218 AD2d 887, 887 [1995] [citations omitted]). Given that the record discloses that the Village Planning Board was presented with new information in the amended subdivision and site plan, we find that it was authorized to reaffirm the approval notwithstanding the fact that it had been previously rescinded. Matter of Town of Mamakating v Village of Bloomingburg, 2019 NY Slip Op 05732, Third Dept 7-18-19

 

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