You are here: / Third Department

Tag Archive for: Third Department

,

DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE BECAUSE THE VICTIM WAS NEARLY 17 AND NO FORCE WAS INVOLVED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a downward departure under risk level guidelines:

Here, the Board recommended a downward departure on the ground set forth in the above guidelines. Significantly, the victim was to turn 17 only two months after the incident and reported that no force was used and that she was a willing participant. Moreover, the victim had various communications with defendant on Facebook and spent time with him prior to the incident, which appears to have been their only sexual encounter. Notably, County Court declined to grant a downward departure on the basis that defendant had already benefited from the victim’s consent by obtaining a light criminal sentence. Clearly, this was not an appropriate factor to be considered under the guidelines. Therefore, under the circumstances presented, we find that defendant established by a preponderance of the evidence the existence of mitigating factors not taken into account by the guidelines and that County Court abused its discretion in denying his request for a downward departure … . Consequently, defendant’s total risk score of 90, which presumptively placed him in the risk level two classification, should be reduced by the 25 points allocable to risk factor 2 (sexual contact with victim), giving him a total risk score of 65 and placing him in the risk level one classification. People v Secor, 2019 NY Slip Op 02759, Third Dept 4-11-19

 

, ,

WIFE’S STATUS AS A BENEFICIARY OF AN ANNUITY PAID TO THE HUSBAND WAS REVOKED BY OPERATION OF THE ESTATES, POWERS AND TRUST LAW (EPTL) UPON DIVORCE (THIRD DEPT). ​

The Third Department determined an annuity paid to the husband in settlement of a medical malpractice action was not payable to the former wife (Malizia), as a beneficiary of the annuity, because her status as a beneficiary was revoked upon divorce, pursuant to the Estates, Powers and Trust Law (EPTL):

EPTL 5-1.4 (a) provides that, “[e]xcept as provided by the express terms of a governing instrument, a divorce . . . revokes any revocable (1) disposition or appointment of property made by a divorced individual to, or for the benefit of, the former spouse.” Malizia’s argument that EPTL 5-1.4 does not apply to the annuity is unavailing. Although an annuity is not specifically identified as a governing instrument by EPTL 5-1.4 (f) (5), the statute expressly indicates that the list is illustrative and not exhaustive. An annuity is a testamentary substitute that operates similarly to the examples of governing instruments that are specifically named in the statute by providing for the disposition of property at death … . In that regard, the annuity specifically provided for payment of the monthly installments to decedent during his lifetime, and the beneficiary designation constituted a disposition of a property interest to the named beneficiary at decedent’s death, i.e., the right to receive any guaranteed payments required to be made after his death. The statute was enacted to prevent the inadvertent disposition of such property to a former spouse following termination of a marriage by creating a conclusive and irrebuttable presumption that any revocable disposition of property to a former spouse is automatically revoked upon divorce … . United States Life Ins. Co. In The City of New York v Shields, 2019 NY Slip Op 02593, Third Dept 4-4-19

 

WAIVER OF INDICTMENT AND SUPERIOR COURT INFORMATION DID NOT INCLUDE THE TIME OF THE OFFENSE, GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, reversing County Court, determined that defendant’s guilty plea must be vacated because the waiver of indictment and superior court information were defective. The time of the offense was not indicated:

We agree with defendant’s contention that, because there was not strict compliance with the statutory mandates of CPL 195.20, his waiver of indictment is invalid, thereby requiring reversal of the judgment of conviction … . The plain language of CPL 195.20 requires that a waiver of indictment include the date and approximate time of the charged offense. Although the waiver of indictment and the SCI, when filed together, may be read as a single document in order to satisfy the requirements of the statute, here, neither the waiver of indictment nor the SCI properly indicate the time of the charged offense … . Moreover, this is not “a situation where the time of the offense is unknown or, perhaps, unknowable” so as to excuse the absence of such information … . People v Titus, 2019 NY Slip Op 02588, Second Dept 4-4-19

Because defendant’s admission to a violation of probation was induced by the explicit promise his sentence for the probation violation would run concurrently with the sentence for attempted burglary, which was reversed above, defendant’s plea to the probation violation was vacated as well.  People v Titus, 2019 NY Slip Op 02589, Third Dept 4-4-19

 

, , ,

DEFENDANT HAD SERVED HIS ENTIRE SENTENCE BY THE TIME THE ASSAULT SECOND CONVICTION WAS OVERTURNED, THE IMPOSITION OF MORE PRISON TIME UPON HIS SUBSEQUENT PLEA TO THE ASSAULT SECOND CHARGE VIOLATED THE DOUBLE JEOPARDY CLAUSE, DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING TIME SERVED, BECAUSE THE ERROR AFFECTED THE VOLUNTARINESS OF DEFENDANT’S GUILTY PLEA THE WAIVER OF APPEAL DID NOT APPLY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction and set aside the sentence should have been granted. The court noted that the waiver of appeal did not apply because the alleged error affected the voluntariness of the guilty plea. At the time defendant’s assault second conviction was overturned he had completed his sentence. When he subsequently pled guilty to the assault second charge more prison time was imposed. That violated the prohibition against double jeopardy (punished twice for the same offense). Defense counsel was ineffective for not arguing defendant must be sentenced to time served:

At the time of remittal, it was clear that, more than 15 years earlier, defendant had been sentenced to seven years in prison for his conviction of assault in the second degree, which was the maximum permissible sentence for a second violent felony offender convicted of that crime … . It was also clear that his assault conviction had been overturned on appeal. These facts and circumstances alone would have alerted a reasonably competent attorney to the possibility that any subsequent sentence that included additional prison time might violate the constitutional prohibition against multiple punishments and, by extension, prompted an inquiry into the amount of time that defendant had already served in prison on his 2001 assault conviction. It is evident from the record that defense counsel did not recognize or investigate the obvious potential double jeopardy concern at the time of remittal for, if she had, she would have determined — as the People concede — that defendant had already served the maximum permissible prison term for assault in the second degree and, therefore, could be sentenced only to time served … . People v Jones, 2019 NY Slip Op 02586, Third Dept 4-4-19

 

A NEW HEARING ON FATHER’S PETITION TO RELOCATE IS REQUIRED BECAUSE THE COURT MAY HAVE PLACED TOO MUCH EMPHASIS ON THE CHILD’S ENROLLMENT IN A PARTICULAR SCHOOL AS THE BASIS FOR GRANTING THE PETITION (THIRD DEPT). ​

The Third Department, reversing Family Court, determined a new hearing on father’s relocation petition was required because the court may have put too much emphasis on the child’s enrollment in a particular school:

Family Court determined that it was in the best interests of the child to award the father physical custody of the child and to permit the child to relocate to New York City. In making this determination, we note that the court took into account the child’s relationship with the family members in each parties’ household, the child’s current school and Promise Academy, the parties’ relative fitness to provide a safe and healthy environment and the structure in each household to support the child’s educational needs. The court, however, conditioned such change of custody and relocation upon the child’s enrollment in Promise Academy for the 2017-2018 school year. In our view, by imposing such condition, the court erroneously elevated the child’s matriculation at Promise Academy from one factor to be considered in the best interests analysis to the sole dispositive factor. Inasmuch as no one factor is dispositive … , the order must be reversed and a new hearing to be conducted on the father’s modification petition within 20 days of this Court’s decision. Matter of Lionel PP. v Sherry QQ., 2019 NY Slip Op 02398, Third Dept 2-28-19

 

, ,

DOCUMENTS SOUGHT BY PETITIONER WERE EXEMPT FROM DISCLOSURE BASED UPON THE ATTORNEY-CLIENT PRIVILEGE, THE ATTORNEY WORK PRODUCT AND THE INTER-, INTRA-AGENCY COMMUNICATION EXEMPTIONS (THIRD DEPT).

The Third Department, modifying Supreme Court, determined emails between the governor’s office, counsel and Department of Transportation (DOT) employees concerning a gas station sublease which had been held by petitioner, but which was terminated by DOT, were exempt from disclosure based upon attorney-client privilege, attorney work-product, and the inter-, intra-agency communication exemption:

In determining whether a communication is protected by the attorney-client privilege, “the critical inquiry is whether, viewing the lawyer’s communication in its full content and context, it was made in order to render legal advice or services to the client” … . In that regard, inasmuch as facts are the foundation of legal advice, the attorney-client privilege protects communications between an attorney and his or her client that convey facts relevant to a legal issue under consideration, even if the information contained in the communication is not privileged … . Each of the emails at issue are communications between counsel in the Governor’s Office and DOT employees that contain or reference factual information relevant to counsel providing legal advice regarding the proposed termination of the sublease. Accordingly, we conclude that the emails are protected by the attorney-client privilege and, therefore, Supreme Court erred in ordering their disclosure.

Respondents further contend that preliminary drafts of the letter that was ultimately sent terminating the sublease are exempt from disclosure under FOIL as inter-agency or intra-agency materials and as attorney work product … . The letters are drafts of the final termination notice that incorporate counsel’s recommendations and that were circulated in furtherance of the decision-making process prior to a final determination; accordingly, they are exempt from disclosure under FOIL as inter-agency or intra-agency materials and as attorney work product … . Matter of Gilbert v Office of the Governor of the State of N.Y., 2019 NY Slip Op 02189, Third Dept 3-21-19

 

,

QUESTIONS OF FACT WHETHER STATE HAD CONSTRUCTIVE NOTICE OF THE CONDITION OF THE ROAD WHICH ALLEGEDLY CAUSED PLAINTIFF’S BICYCLE ACCIDENT (THIRD DEPT).

The Third Department determined claimant’s motion for summary judgment in this bicycling accident case was properly denied. There were questions of fact whether the state had constructive notice of the road conditions which allegedly caused the accident:

There was no evidence that defendant had actual notice of this hazard and only conflicting evidence regarding constructive notice. Savoury testified that there had been no prior complaints or accidents and that the road was regularly inspected . However, defendant may be charged with constructive notice of the hazard if it “existed for a sufficient period of time to allow defendant[] to discover and rectify the problem” … . Although most of the witnesses attributed the bumps to the effects of cars driving over cold patch and the delamination to the effects of the freeze/thaw cycle, evidence regarding the length of time that the bumps and delaminated section were present was equivocal, and there was no evidence regarding how long the debris had been on the shoulder … . Even if defendant had actual or constructive notice of the hazardous condition, claimant’s submissions evince that temporary repair work had been done in the months leading up to the accident, and the submissions fail to demonstrate what “reasonable [corrective] measures” should have been taken given the circumstances … . Given the myriad factual questions presented, including whether defendant had notice of the hazardous condition in the highway but failed to respond with appropriate maintenance measures, the Court of Claims properly denied claimant’s motion. Schleede v State of New York, 2019 NY Slip Op 02188, Third Dept 3-21-19

 

, , , ,

IN THIS ASBESTOS EXPOSURE CASE, A WITNESS’S VIDEOTAPED DEPOSITION TESTIMONY FROM PROCEEDINGS IN OTHER STATES SHOULD NOT HAVE BEEN ADMITTED IN THE PLAINTIFF’S DIRECT CASE OR IN THE DEFENSE CASE, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, ordering a new trial, determined that videotaped deposition testimony from proceedings in other states was not admissible in the New York action. It was alleged that plaintiff’s decedent died from exposure to asbestos in a joint compound made by Georgia-Pacific. An employee of Georgia-Pacific, Charles Lehnert, who was familiar with the formula for the joint compound, gave the videotaped deposition testimony:

CPLR 3117 (a) (3) provides, in relevant part, that “any part or all of a deposition, so far as admissible under the rules of evidence, may be used . . . by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules.” Here, defendant was permitted to introduce deposition testimony given by Lehnert in the 2007 Texas state court action for the purpose of demonstrating that it contradicted the 2001 and 2003 testimony that plaintiff had been permitted to introduce as part of its case-in-chief. However, although defendant was a party to the 2007 Texas action, plaintiff was not, and he had no opportunity to be present and cross-examine Lehnert. Thus, this testimony was not admissible under CPLR 3117 (a) (3) … . …

Although defendant did not cross-appeal, our holding reversing Supreme Court’s ruling regarding Lehnert’s 2007 testimony necessarily brings up for review Supreme Court’s denial of defendant’s motion to preclude Lehnert’s 2001 and 2003 testimony (seeCPLR 5501 [a] [1] …). Upon review, we find that none of Lehnert’s deposition testimony should have been admitted into evidence at this trial. Although a live witness may be impeached with prior inconsistent testimony, Lehnert never testified for any party in this action, either at the trial itself or at any pretrial deposition. He was merely a witness who had testified years ago in multiple other states on the subject of the content of Georgia-Pacific joint compound. Rather than calling him (or any other witness) to testify on this topic, both parties resorted to retrieving video of Lehnert’s testimony in those earlier actions and selectively playing those portions they believed supported their respective contentions. The jury was essentially asked to determine whether Lehnert, an empty chair in New York, testified more credibly in Illinois or Texas. In this scenario, CPLR 3117 (a) (2) did not permit plaintiff to introduce the 2001 and 2003 depositions on his case-in-chief, and CPLR 3117 (c) did not permit defendant to impeach those depositions with another deposition. Billok v Union Carbide Corp., 2019 NY Slip Op 02185, Third Dept 3-21-19

 

, ,

DEFENDANT SHOULD NOT HAVE BEEN ASSESSED 20 POINTS FOR A CONTINUING COURSE OF SEXUAL MISCONDUCT, PROOF OF A SECOND INSTANCE OF SEXUAL MISCONDUCT WAS INSUFFICIENT, AN ALLEGATION IN AN INDICTMENT IS NOT, BY ITSELF, EVIDENCE THE INCIDENT OCCURRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that defendant should not have been assessed 20 points for a continuing course of sexual misconduct, noting that a reference in an indictment is not sufficient proof:

Defendant pleaded guilty to one count of having sexual intercourse with the victim and claimed that he only had sex with the victim once. The People presented a sworn statement given to the police by the victim’s mother in which she recounts that, when she confronted the victim concerning her relationship with defendant, the victim told her that they “had sex two times.” Even assuming that this statement constitutes reliable hearsay … there is no indication by the victim as to when the acts of sexual contact occurred. Although the case summary states that the presentence investigation report reflects that acts of sexual contact occurred in May 2013 and September 2013, the only reference to a September 2013 act in that report is when it lists the charges contained in the indictment. Notably, “the fact that an offender was arrested or indicted for an offense is not, by itself, evidence that the offense occurred” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). Inasmuch as there is no evidence in the record regarding when the second act of sexual contact occurred, we cannot say that there is clear and convincing evidence that two sexual acts occurred that were separated by at least 24 hours … . People v Hinson, 2019 NY Slip Op 02184, Third Dept 3-21-18

 

, ,

THERE IS NO APPEAL FROM A DEFAULT STEMMING FROM FAILURE TO APPEAR, MUST MOVE TO VACATE THE DEFAULT (THIRD DEPT).

The Third Department, dismissing the appeal, explained that where a party in default for failing to appear wishes to appeal, the party must first move to vacate the default:

Respondent appeared by telephone before the Support Magistrate for arraignment, an appearance and a hearing, following which the Support Magistrate concluded that respondent had willfully violated the support order and recommended that he be incarcerated. The matter was referred to Family Court for confirmation. Respondent requested permission to give electronic testimony. Family Court denied that application both in writing and orally and directed, on the record, that respondent must appear in person for the hearing. When respondent did not appear, the court conducted the hearing in his absence, found that he willfully violated the support order and committed him to jail for 180 days. Respondent appeals.

Family Court properly found respondent in default … . Although respondent’s counsel appeared and offered the explanation that respondent could not afford to travel to New York, the court had already heard and rejected that excuse in connection with respondent’s application to give electronic testimony and directed him to appear in person for the hearing. When respondent failed to do so, the court did not abuse its discretion by finding him in default  … . “[T]he proper procedure would be for [respondent] to move to vacate the default and, if said motion is denied, take an appeal from that order” … . Because no appeal lies from an order entered on default, we must dismiss this appeal … . Matter of Ulster County Support Collection Unit v Beke, 2019 NY Slip Op 01864, Third Dept 3-14-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy