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THE DOCTRINES OF COLLATERAL ESTOPPEL AND RES JUDICATA APPLY TO THE ARBITRATOR’S DETERMINATION THAT PETITIONER DID NOT ABUSE A MENTAL HEALTH SERVICES RECIPIENT, THE CONTRARY SUBSEQUENT DETERMINATION BY AN ADMINISTRATIVE LAW JUDGE ANNULLED (THIRD DEPT).

The Third Department, reversing the administrative law judge (ALJ), determined that the doctrines of collateral estoppel and res judicata applied to the original arbitrator’s finding that petitioner, a security assistant employed by the Office of Mental Health (OMH), did not abuse a mental health service recipient. The arbitrator found that the service recipient was the aggressor. The proceedings before the ALJ, which found that petitioner had abused the service recipient, were annulled:

The fundamental point here is that the arbitrator reviewed the underlying event and determined that the service recipient fell to the floor and was the sole aggressor. As such, we conclude that respondent was precluded under principles of res judicata and collateral estoppel from relitigating the question of whether petitioner physically abused the service recipient by pushing her to the floor. It follows that his petition to annul respondent’s determination should be granted and the determination annulled. The matter must be remitted to respondent for amendment of the findings to state that the report is unsubstantiated and for compliance with the requirements of Social Services Law § 494. Matter of Anonymous v New York State Justice Ctr. for the Protection of People With Special Needs, 2019 NY Slip Op 05364, Third Dept 7-3-19

 

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THE CONSTRUCTION OF 27 MILES OF SNOWMOBILE TRAILS IN THE ADIRONDACK PARK WOULD VIOLATE THE NEW YORK CONSTITUTION’S PROHIBITION OF THE DESTRUCTION OF TIMBER (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mulvey, over a dissent, determined that the proposed construction of 27 miles of snowmobile trails in the Adirondack Park required the removal of timber and therefore would violate the New York State Constitution:

NY Constitution, article XIV, § 1 states, in relevant part, that “[t]he lands of the state, now owned or hereafter acquired, constituting the [F]orest [P]reserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.” * * *

Although this project did not involve clear-cutting or the removal of a large swath of trees … , but instead necessitated destruction of narrow corridors of trees for many miles, we need to consider the entire project when determining its effects. The destruction of a substantial number of trees can be problematic whether those trees were together or spread out along one or more portions of the Forest Preserve. For example, the construction of these trails required the destruction, on average per mile, of over 200 trees at least three inches DBH and approximately 925 trees of all sizes. It would be anomalous to conclude that destroying 925 trees per mile of trails, or approximately 25,000 trees in total, does not constitute the destruction of timber “to a substantial extent” or “to any material degree” … . Thus, the construction of the Class II trails resulted in, or would result in, an unconstitutional destruction of timber in the Forest Preserve. Protect the Adirondacks! Inc. v New York State Dept. of Envtl. Conservation, 2019 NY Slip Op 05363, Third Dept 7-3-19

 

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THE ORDER OF PROTECTION WAS NOT SUFFICIENTLY TIED TO THE BEST INTERESTS OF THE CHILD IN THIS NEGLECT PROCEEDING AND SHOULD HAVE BEEN VACATED, ISSUE CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department, reversing Family Court in this neglect proceeding, determined that the order of protection requiring respondent putative father to undergo random urine, breath and blood tests was not sufficiently linked to the best interests of the child. Although the issue was moot in respondent’s case, the Third Department considered the issue, which is likely to recur, as an exception to the mootness doctrine:

… [U]nder the circumstances of this case, the record does not support Family Court’s conclusion that the conditions imposed upon respondent were necessary to further the purposes of protecting the child. At the time that the neglect proceeding was commenced against him and when Family Court entered the temporary order, respondent did not have legal or physical custody of the child; he only had limited parenting time with the child. Yet, the conditions imposed in the temporary order bore no connection to respondent’s parenting time with the child (see Family Ct Act §§ 1029 [a]; 1056 [1] [i]… ). For example, the temporary order generally required respondent to submit to random urine, breath or other tests upon petitioner’s request, rather than requiring that such test occur prior to respondent’s parenting time. The conditions were broad and designed to compel respondent to address his alleged alcohol and substance abuse issues. Family Court adopted petitioner’s proposed conditions without an adequate connection to or explanation as to how each of the conditions related to the protection of the child. Accordingly, we agree with respondent that the temporary order was improper and that Family Court should have granted respondent’s motion to vacate. Matter of Carmine GG. (Christopher HH.), 2019 NY Slip Op 05360, Third Dept 7-3-19

 

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THE LAW REQUIRING THAT SEX OFFENDERS CANNOT RESIDE WITHIN 1000 FEET OF SCHOOL GROUNDS IS NOT UNCONSTITUTIONAL, EVEN AS APPLIED TO AN OFFENDER WHOSE SEX OFFENSES INVOLVED ADULTS (THIRD DEPT).

The Third Department, over a two-justice concurrence, determined defendant sex offender, in this habeas corpus proceeding, was not entitled to release on parole on the ground that the law prohibiting him from residing within 1000 feet of school grounds was unconstitutional. The concurrence called into question the effects of the law. Petitioner’s sex offenses involved adults, not children:

… [A]lthough the open parole release date granted to petitioner cannot be revoked absent procedural due process, we are unpersuaded that he has a further “liberty interest [or] fundamental right . . . to be free from special conditions of parole” regarding his residence under either the Federal or the State Constitution … . …

… [P]etitioner has not satisfied his “heavy burden of showing that [Executive Law § 259-c (14)] is ‘so unrelated to the achievement of any combination of legitimate purposes’ as to be irrational” … . Petitioner may or may not be correct when he says that the mandatory condition does not achieve its legitimate goals, but the argument that there are “better or wiser ways to achieve the law’s stated objectives” must be addressed to the Legislature … . Thus, the mandatory condition comports with substantive due process, and petitioner is not entitled to immediate release. People ex rel. Johnson v Superintendent, Adirondack Corr. Facility, 2019 NY Slip Op 05359, Third Dept 7-3-19

 

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SUMMARY JUDGMENT, BASED IN PART ON THE COLLATERAL ESTOPPEL EFFECT OF RESPONDENT’S CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD, PROPERLY GRANTED (THIRD DEPT).

The Third Department determined petitioner’s motion for summary judgment in this neglect proceeding was properly granted. The motion was based in party on respondent’s endangering-the-welfare-of-a-child conviction:

… “[A] criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct” … . Defendant does not dispute that he had a full and fair opportunity to litigate his criminal conduct before the trial court … . … In order to find a defendant guilty of endangering the welfare of a child, it must be proven that “[h]e or she knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than [17] years old” (Penal Law § 260.10 [1]). In turn, “[t]o establish neglect, [a] petitioner must prove by a preponderance of the evidence that a child’s physical, mental or emotional condition was harmed or is in imminent danger of harm as a result of a failure on the part of the parent to exercise a minimum degree of care” … . …

… [T]the factual allegations underlying respondent’s conviction were adequate to support the finding of neglect. Matter of Lilliana K. (Ronald K.), 2019 NY Slip Op 05358, Third Dept 7-3-19

 

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FATHER, WHO DID NOT SUBMIT A PETITION FOR CUSTODY, WAS PRECLUDED FROM PRESENTING EVIDENCE OF HIS FITNESS AS A PARENT IN THIS CUSTODY PROCEEDING BROUGHT BY MOTHER; FATHER WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS; ALTHOUGH FATHER DID NOT OBJECT, THE APPELLATE COURT HAS INHERENT AUTHORITY TO CORRECT FUNDAMENTAL ERRORS (THIRD DEPT). ​

The Third Department, reversing Family Court, determined father was deprived of due process of law because he was not allowed to put in evidence of his fitness as a parent in this custody proceeding brought by mother. Father did not file a custody petition. For that reason Family Court refused to allow father to put in evidence. The Third Department noted father did not object at trial but exercised its inherent authority to correct fundamental errors:

An initial custody determination must be based upon the best interests of the child, taking into account all relevant factors, including “the parents’ past performance and relative fitness, their willingness to foster a positive relationship between the child and the other parent, as well as their ability to maintain a stable home environment and provide for the child’s overall well-being” … . By this standard, the court must assess the qualifications of both parents in determining what custody determination best serves the interests of the child. In its decision, Family Court expressly held that because the father did not also file a custody petition, it could “only take into consideration the testimony brought by the mother.” There were several instances during the trial where the court precluded testimony from the father and his witness because he did not file a petition. As a result, the father was prevented from addressing all of the relevant factors, including who should be the primary custodian and what he did to foster a relationship between the child and the mother. The father’s stepfather was precluded from testifying as to his observations of the father as a parent. The father was allowed to briefly testify as to his average day with the child at the conclusion of testimony … . …

We are mindful that the father did not raise any objections at trial to Family Court’s evidentiary limitations. We are also mindful that the father was able to briefly testify as to his interactions with the child. That said, this court has inherent authority to exercise its discretion and correct fundamental errors … . In our view, the court’s failure to allow the father a full and fair opportunity to present evidence, coupled with the court’s own limitations on its decision, constitutes a fundamental due process error requiring reversal of Family Court’s order … . Matter of Liska J. v Benjamin K., 2019 NY Slip Op 05347, Third Dept 7-3-19

 

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EVIDENCE OF PRIOR UNCHARGED SEXUAL OFFENSES WAS NOT ADMISSIBLE UNDER MOLINEUX, HEARSAY EVIDENCE OF VICTIM’S DISCLOSURE TWO AND A HALF YEARS AFTER THE ALLEGED INCIDENT WAS NOT ADMISSIBLE AS A PROMPT OUTCRY, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined detailed evidence of prior uncharged sexual offenses was not admissible under Molineux. The defendant was charged with criminal sexual act alleging defendant asked a six or seven year old boy to perform oral sex on him. The People presented in their direct case the testimony of two female relatives of the defendant alleging sexual offenses occurring more than seven years before the victim’s disclosure in the instant case. County Court also erroneously allowed hearsay about the victim’s disclosure, two and a half years after the alleged incident, under the prompt outcry exception to the hearsay rule:

The female relatives specifically testified to repeated instances of oral sex, vaginal sex and digital penetration by defendant, and one of the female relatives stated that defendant forced her and the other female relative to perform sexual acts upon each other as he watched. Contrary to County Court’s conclusion, such detailed testimony was not necessary to complete the narrative as to how and why the victim’s disclosure occurred … . Additionally, the prior uncharged acts did not bear a sufficient similarity to the incident underlying the charged crimes so as to constitute, as the People argued, a common scheme or plan or demonstrate defendant’s intent or motive … . Accordingly, as the People failed to establish that the proffered evidence was probative of a material issue other than defendant’s criminal propensity, County Court erred in permitting such evidence … . Moreover, even if the proffered evidence were relevant to some nonpropensity purpose, County Court erroneously determined that the probative value of the evidence outweighed its prejudicial effect … . People v Saxe, 2019 NY Slip Op 05345, Third Dept 7-3-19

 

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MATTER REMITTED FOR A HEARING ON WHETHER THE TRIAL COURT WAS, OR SHOULD HAVE BEEN, AWARE OF A NOTE FROM THE JURY SUCH THAT THE RESPONSIBILITY TO NOTIFY COUNSEL WAS TRIGGERED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, holding the appeal in abeyance, determined a hearing was required to determine whether the trial court was aware, or should have been aware, of the existence of a note from the jury such that the court’s responsibility to alert counsel was triggered:

We find this case similar to People v Meyers (___ NY3d ___, 2019 NY Slip Op 03658 [2019]), in which the Court of Appeals addressed the circumstance where a purported jury note that had been marked as a court exhibit was discovered in the court file after the trial, presenting circumstances suggesting that it may have been a draft that the jury discarded or chose not to submit to the trial court. * * *

Here, as in Meyers, we are presented with a scanty and ambiguous record, precluding this Court from determining whether County Court’s core responsibilities were triggered by its knowledge of the note or by circumstances that should have alerted the court to its presence. Accordingly, we remit the matter for a hearing to assess the circumstances pertaining to the events at trial during the jury’s deliberations and the acceptance of its verdict, including the transmission, receipt, marking and communication to the court of all three notes, and for a report to this Court setting out the court’s findings. People v Johnson, 2019 NY Slip Op 05344, Third Dept 7-3-19

 

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FAILURE TO INSTRUCT THE JURY THAT ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON ALL THE RELATED LESSER COUNTS REQUIRED REVERSAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the jury was not properly instructed on the justification defense. The defendant was acquitted of the top count, attempted murder, and was convicted attempted assault first, a lesser included offense. The jury was not told that an acquittal on the top count based upon the justification defense required an acquittal on all the counts to which the justification defense applied. The issue was not preserved but was considered in the interest of justice:

“[I]n a case involving a claim of self-defense, it is error for the trial court not to instruct the [jury] that, if [it finds] the defendant not guilty of a greater charge on the basis of justification, [it is] not to consider any lesser counts” … . Such failure constitutes reversible error … . …

… [T]he court’s instructions, together with the verdict sheet, failed to adequately convey to the jury that, if it found defendant not guilty of attempted murder in the second degree based on justification, it was not to consider the lesser counts to which the justification defense applied … . People v Daniels, 2019 NY Slip Op 05343, Third Dept 7-3-19

 

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RECORD WAS INSUFFICIENT TO DETERMINE THE LEVEL OF PREJUDICE CAUSED BY PLAINTIFF’S FAILURE TO PRESERVE THE PHONE WHICH ALLEGEDLY CAPTURED IMAGES OF THE INCIDENT AT THE HEART OF THE LAWSUIT, DISMISSAL OF THE COMPLAINT REVERSED AND MATTER REMITTED FOR FURTHER DISCOVERY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined that the record was not sufficient to conclude whether dismissal of the complaint was a proper sanction for spoliation of evidence. Plaintiff alleged defendant negligently or intentionally struck defendant with an all-terrain vehicle (ATV). Defendant asked plaintiff to preserve a phone which allegedly contained images of the incident. Plaintiff did not preserve the phone but provided one image and one video which were alleged to have been on the phone. Supreme Court dismissed the complaint as a sanction for spoliation. The Third Department noted there was evidence that all the metadata on the phone had been preserved and remitted the matter for discovery and, if necessary, an appropriate sanction:

… [T]he factors to be considered in determining the appropriate sanctions for such failures are “the extent that the spoliation of evidence may prejudice a party and whether a dismissal will be necessary as a matter of elementary fairness” … . …

… [W]e remit to Supreme Court with direction for plaintiff to promptly obtain and provide to defendant all photos, videos and metadata pertinent to the incident that have been preserved in any source, or to provide defendant with full access to any such stored photos, videos and metadata. The retrieval and examination of this information — or the continued failure to do so — will permit Supreme Court to reexamine, upon a full record, whether pertinent electronic information has been lost as a result of plaintiff’s failure to preserve the phone, to what extent defendant has been prejudiced by that loss and, thus, whether dismissal, an adverse inference charge or some other sanction may be appropriate … . LaBuda v LaBuda, 2019 NY Slip Op 05372, Third Dept 7-3-19

 

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