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FAMILY COURT’S CONCLUSIONS IN THIS CUSTODY MATTER WERE NOT SUPPORTED BY THE RECORD, MATTER REMITTED FOR PROCEEDINGS BEFORE A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, reversing Family Court, determined that the custody determinations were not supported by the record and remitted the matter for further proceedings before a different judge. The decision is too fact-specific to fairly summarize here:

We agree with the mother that Family Court’s decision and order mischaracterizes and, at times, inaccurately reflects the record evidence and that, therefore, its determination lacks a sound and substantial basis in the record. …

… [T]he record evidence does not support Family Court’s depiction of the mother as “a hands-off parent who appears to pay little attention to the child’s needs when he is in her care” or its converse depiction of the father as a “devote[d]” parent with few, if any, flaws. Our review of the evidence reveals a more complicated picture than that portrayed by Family Court. …

… [T]he record evidence, including the father’s own admissions, completely contradicts Family Court’s conclusion that there was no support for the mother’s claim of substance abuse and domestic violence by the father. …

Family Court’s conclusion that there “was no credible evidence of domestic violence” by the father against the mother was also contradicted by the record. …

… Family Court misconstrued, mischaracterized and otherwise amplified the evidence to portray the mother in the light least favorable. …

Moreover, even if Family Court’s determination to award the father primary physical custody were supported by a sound and substantial basis, there was no basis for the severe reduction of the mother’s overall time with the child, particularly since the parties had previously shared 50/50 custody of the child … . Matter of Shirreece AA. v Matthew BB., 2018 NY Slip Op 08215, Third Dept 11-29-18

FAMILY LAW (FAMILY COURT’S CONCLUSIONS IN THIS CUSTODY MATTER WERE NOT SUPPORTED BY THE RECORD, MATTER REMITTED FOR PROCEEDINGS BEFORE A DIFFERENT JUDGE (THIRD DEPT))/EVIDENCE (FAMILY LAW, CUSTODY, FAMILY COURT’S CONCLUSIONS IN THIS CUSTODY MATTER WERE NOT SUPPORTED BY THE RECORD, MATTER REMITTED FOR PROCEEDINGS BEFORE A DIFFERENT JUDGE (THIRD DEPT))/CUSTODY (FAMILY COURT’S CONCLUSIONS IN THIS CUSTODY MATTER WERE NOT SUPPORTED BY THE RECORD, MATTER REMITTED FOR PROCEEDINGS BEFORE A DIFFERENT JUDGE (THIRD DEPT))

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RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT). ​

The Third Department, reversing Family Court, determined that respondent did not receive effective assistance of counsel in this family offense proceeding:

Petitioner filed a family offense petition alleging that respondent harassed and stalked her. …

Viewing the record in its entirety, we agree with respondent’s argument that he was denied meaningful representation … .. Before the hearing, counsel did not engage in any discovery. At the hearing, counsel did not present an opening or closing statement. Nor did counsel object when Family Court questioned petitioner — who appeared pro se — and admittedly assisted her in establishing a foundation for two of her three photographic exhibits. Counsel asked questions of petitioner regarding those exhibits on voir dire, but objected to admission of only one of them, did not request that the court disregard petitioner’s handwritten notes on the exhibits, and did not object to the many hearsay statements made by petitioner. Counsel declined to cross-examine petitioner, at which point the court stated that she had established a prima facie case and did not need to call any further witnesses. Even though respondent had stated — while not under oath — that one of the photographs was taken when the parties were out together, rather than while petitioner was unaware of his presence, counsel did not call respondent or any other witnesses to testify. In short, counsel did almost nothing to assist his client. Matter of Wood v Rebich, 2018 NY Slip Op 08213, Third Dept 11-29-18

FAMILY LAW (ATTORNEYS, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))/ATTORNEYS (FAMILY LAW, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))/FAMILY OFFENSE (ATTORNEYS, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))/CRIMINAL LAW (FAMILY LAW, FAMILY OFFENSE, CRIMINAL LAW, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))/INEFFECTIVE ASSISTANCE (FAMILY LAW, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))

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TERMINATION OF FATHER’S VISITATION RIGHTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, WHICH INCLUDED HEARSAY (THIRD DEPT).

The Third Department, reversing Family Court, determined termination of father’s visitation was not supported by a sound and substantial basis in the record:

It is undisputed that the father engaged in physical violence and verbal abuse directed at the mother. Although the record demonstrates strong support for a change in circumstances and supervised visitation, the record lacks direct evidence that visitation is detrimental to the child; as such, it is presumed that it is in the child’s best interests to continue visitation … . Further, although the mother and maternal grandmother testified regarding concerns about the father’s sexual behavior, these concerns were based on hearsay and speculation from vulgar and inappropriate comments made by the father. Concern regarding abuse or potential abuse must have a basis in the record to justify denial of visitation; uncorroborated hearsay alone is not enough … . Notably, both the mother and the attorney for the child supported continued supervised visitation … . Thus, Family Court’s determination to terminate visitation lacks a sound and substantial basis in the record … . Matter of Boisvenue v Gamboa, 2018 NY Slip Op 08211, Third Dept 11-29-18

FAMILY LAW (VISITATION, TERMINATION OF FATHER’S VISITATION RIGHTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, WHICH INCLUDED HEARSAY (THIRD DEPT))/VISITATION (FAMILY LAW, TERMINATION OF FATHER’S VISITATION RIGHTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, WHICH INCLUDED HEARSAY (THIRD DEPT))/EVIDENCE (FAMILY LAW, VISITATION, TERMINATION OF FATHER’S VISITATION RIGHTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, WHICH INCLUDED HEARSAY (THIRD DEPT))/HEARSAY (FAMILY LAW, VISITATION, TERMINATION OF FATHER’S VISITATION RIGHTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, WHICH INCLUDED HEARSAY (THIRD DEPT))

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AFTER REVERSAL BY THE COURT OF APPEALS, THE EXPULSION OF PETITIONER STUDENT FOR SEXUAL MISCONDUCT IN VIOLATION OF THE COLLEGE’S STUDENT CODE CONFIRMED, COLLEGE APPEALS BOARD HAD THE POWER TO IMPOSE ANY AVAILABLE REMEDY INCLUDING EXPULSION (THIRD DEPT).

The Third Department, after a reversal by the Court of Appeals, confirmed the college’s determination to expel petitioner, a student accused of sexual misconduct in violation of the student code:

… [T]he Court of Appeals agreed with us “that petitioner’s due process arguments were not preserved at the administrative level” … . To the extent that petitioner’s procedural claims go beyond those arguments, they are also unpreserved due to him either failing to raise them at the administrative hearing when they could have been corrected or failing to raise them altogether … . We accordingly focus upon the penalty of expulsion recommended by SUNY’s Appellate Board and imposed by respondent Kristen Esterberg, SUNY’s president.

Petitioner may not have been aware of the fact when he took an administrative appeal from a decision of the Hearing Board that suspended him for a semester, but the Appellate Board was empowered by article IX (C) of the student code of conduct to “alter the sanctions imposed” and punish him with “any of the [available] sanctions,” including more severe ones. Article IX misstates the student code of conduct sections dealing with the jurisdiction of the Appellate Board and the permissible sanctions, but a review of the pertinent provisions leaves no doubt that those misstatements were drafting errors that may be disregarded… . The Appellate Board chose one of the available remedies by recommending expulsion and, while no explanation was offered as to why it did so, the student code of conduct did not require one. Esterberg adopted the recommendation. Matter of Haug v State Univ. of N.Y. At Potsdam, 2018 NY Slip Op 08208, Third Dept 11-29-18

EDUCATION-SCHOOL LAW (COLLEGE DISCIPLINE, AFTER REVERSAL BY THE COURT OF APPEALS, THE EXPULSION OF PETITIONER STUDENT FOR SEXUAL MISCONDUCT IN VIOLATION OF THE COLLEGE’S STUDENT CODE CONFIRMED, COLLEGE APPEALS BOARD HAD THE POWER TO IMPOSE ANY AVAILABLE REMEDY INCLUDING EXPULSION (THIRD DEPT))/ADMINISTRATIVE LAW (COLLEGE DISCIPLINE, AFTER REVERSAL BY THE COURT OF APPEALS, THE EXPULSION OF PETITIONER STUDENT FOR SEXUAL MISCONDUCT IN VIOLATION OF THE COLLEGE’S STUDENT CODE CONFIRMED, COLLEGE APPEALS BOARD HAD THE POWER TO IMPOSE ANY AVAILABLE REMEDY INCLUDING EXPULSION (THIRD DEPT))/DISCIPLINARY PROCEEDINGS (COLLEGES,  AFTER REVERSAL BY THE COURT OF APPEALS, THE EXPULSION OF PETITIONER STUDENT FOR SEXUAL MISCONDUCT IN VIOLATION OF THE COLLEGE’S STUDENT CODE CONFIRMED, COLLEGE APPEALS BOARD HAD THE POWER TO IMPOSE ANY AVAILABLE REMEDY INCLUDING EXPULSION (THIRD DEPT))

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DEFENSE COUNSEL APOLOGIZED TO COUNTY COURT AND INDICATED DEFENSE COUNSEL’S BEHAVIOR MAY HAVE CAUSED THE PEOPLE TO HAVE WITHDRAWN A MORE FAVORABLE PLEA OFFER, COUNTY COURT SHOULD HAVE ASSIGNED SUBSTITUTE COUNSEL AND SHOULD HAVE CONDUCTED AN INQUIRY TO DETERMINE WHETHER THE PEOPLE SHOULD BE COMPELLED TO REOFFER THE PRIOR PLEA DEAL (THIRD DEPT).

The Third Department, reversing County Court, determined County Court should have inquired into defense counsel’s apology for his behavior which may have caused the People to withdraw a more favorable plea offer:

County Court failed to take appropriate action in response to defense counsel’s disclosures. Initially, County Court failed to recognize that defense counsel’s statements disqualified him from continuing to represent defendant, particularly if defense counsel were required to provide testimony regarding the events that allegedly took place on the preceding Friday… . Accordingly, when presented with defense counsel’s statements, County Court should have immediately explained the situation to defendant and adjourned the matter to allow for the substitution of counsel.

Following substitution of counsel, County Court should have conducted a hearing to determine whether defendant received the ineffective assistance of counsel during the plea negotiation process and, thus, was entitled to an order directing the People to reoffer the more favorable plea offer that was allegedly available on the preceding Friday… . County Court, however, failed to appreciate that, if defendant made the requisite showing at that hearing, it could in its discretion direct the People to reoffer the prior, more favorable plea, if it was in fact made… . Indeed, a court may direct the People to reoffer a prior, more favorable plea offer on ineffective assistance of counsel grounds only if a defendant demonstrates (1) the existence of a prior, more favorable plea offer, (2) a reasonable probability that, but for defense counsel’s conduct, he or she would have accepted the prior plea offer, (3) a reasonable probability that the agreement would have been presented to and accepted by the court and (4) that the conviction and/or sentence under the terms of the plea offer would have been less severe than the conviction and sentence ultimately imposed … . County Court did not afford defendant the opportunity to make this showing here. Rather, it repeatedly misinformed defendant that it could not direct the People to reoffer the prior plea offer and that defendant could either take a new plea offer or go to trial. It is under these circumstances that defendant accepted the later plea offer and entered the underlying guilty plea. Therefore, we reverse the judgment of conviction and remit the matter for substitution of defense counsel and further proceedings. People v McGee, 2018 NY Slip Op 08203, Third Dept 11-29-18

CRIMINAL LAW (DEFENSE COUNSEL APOLOGIZED TO COUNTY COURT AND INDICATED DEFENSE COUNSEL’S BEHAVIOR MAY HAVE CAUSED THE PEOPLE TO HAVE WITHDRAWN A MORE FAVORABLE PLEA OFFER, COUNTY COURT SHOULD HAVE ASSIGNED SUBSTITUTE COUNSEL AND SHOULD HAVE CONDUCTED AN INQUIRY TO DETERMINE WHETHER THE PEOPLE SHOULD BE COMPELLED TO REOFFER THE PRIOR PLEA DEAL (THIRD DEPT))/PLEA OFFERS (CRIMINAL LAW, DEFENSE COUNSEL APOLOGIZED TO COUNTY COURT AND INDICATED DEFENSE COUNSEL’S BEHAVIOR MAY HAVE CAUSED THE PEOPLE TO HAVE WITHDRAWN A MORE FAVORABLE PLEA OFFER, COUNTY COURT SHOULD HAVE ASSIGNED SUBSTITUTE COUNSEL AND SHOULD HAVE CONDUCTED AN INQUIRY TO DETERMINE WHETHER THE PEOPLE SHOULD BE COMPELLED TO REOFFER THE PRIOR PLEA DEAL (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL APOLOGIZED TO COUNTY COURT AND INDICATED DEFENSE COUNSEL’S BEHAVIOR MAY HAVE CAUSED THE PEOPLE TO HAVE WITHDRAWN A MORE FAVORABLE PLEA OFFER, COUNTY COURT SHOULD HAVE ASSIGNED SUBSTITUTE COUNSEL AND SHOULD HAVE CONDUCTED AN INQUIRY TO DETERMINE WHETHER THE PEOPLE SHOULD BE COMPELLED TO REOFFER THE PRIOR PLEA DEAL (THIRD DEPT))

UNLIKE AN INDICTMENT, A WAIVER OF INDICTMENT MUST INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, THE WAIVER HERE INCLUDED ONLY THE DAY OF THE OFFENSE AND WAS THEREFORE INVALID (THIRD DEPT).

The Third Department determined the waiver of indictment was invalid because it did not include the approximate time of the offense. The court noted that the time allegations required for an indictment do not include the approximate time of the offense, but the approximate time must be included in a waiver of indictment:

Courts have held that “[w]hen time is not an essential element of an offense, the indictment, as supplemented by a bill of particulars, may allege the time in approximate terms. The indictment must, however, set forth a time interval which reasonably serves the function of protecting defendant’s constitutional right to be informed of the nature and cause of the accusation, so as to enable the defendant to prepare a defense and to use the judgment against further prosecution for the same crime” … . Those cases deal with indictments, however, not waivers of indictment. Pursuant to the statute, an indictment must include a statement “that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time” (CPL 200.50 [6]), whereas CPL 195.20 requires that waivers of indictment include the offense’s “date and approximate time” … . “[I]n the interpretation of a statute[,] we must assume that the Legislature did not deliberately place a phrase in the statute which was intended to serve no purpose[,] and each word must be read and given a distinct and consistent meaning” … . Simply stating that the offense occurred on, or on or about, a specified date or within a range of time (such as a certain week, month or span of months) may meet the statutory requirements for an indictment … , but is insufficient to meet CPL 195.20’s additional “approximate time” requirement for a waiver of indictment … . Any other interpretation would render the statute’s language requiring the “approximate time” superfluous or redundant. People v Busch-Scardino, 2018 NY Slip Op 07979, Third Dept 11-21-18

CRIMINAL LAW (UNLIKE AN INDICTMENT, A WAIVER OF INDICTMENT MUST INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, THE WAIVER HERE INCLUDED ONLY THE DAY OF THE OFFENSE AND WAS THEREFORE INVALID (THIRD DEPT))/WAIVER OF INDICTMENT  (UNLIKE AN INDICTMENT, A WAIVER OF INDICTMENT MUST INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, THE WAIVER HERE INCLUDED ONLY THE DAY OF THE OFFENSE AND WAS THEREFORE INVALID (THIRD DEPT))/TIME (WAIVER OF INDICTMENT, UNLIKE AN INDICTMENT, A WAIVER OF INDICTMENT MUST INCLUDE THE APPROXIMATE TIME OF THE OFFENSE, THE WAIVER HERE INCLUDED ONLY THE DAY OF THE OFFENSE AND WAS THEREFORE INVALID (THIRD DEPT))

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DURING THE PLEA COLLOQUY DEFENDANT NEGATED AN ELEMENT OF THE CRIME AND THE COURT DID NOT CONDUCT FURTHER INQUIRY, THE ERROR NEED NOT BE PRESERVED FOR CONSIDERATION ON APPEAL, PLEA VACATED (THIRD DEPT).

The Third Department, vacating defendant’s plea, determined that the court should have conducted further inquiry after defendant, during the plea colloquy, made a statement about the age of the victim which negated an element of the crime. The error triggered the narrow exception to the preservation requirement:

Defendant contends that the plea must be vacated because he negated an essential element of the crime at sentencing. Although the record does not reflect that defendant made an appropriate postallocution motion in order to preserve this issue for our review, we find that a statement made by defendant at sentencing cast doubt upon his guilt and, therefore, triggered “the narrow exception to the preservation requirement and impos[ed] a duty upon County Court ‘to inquire further to ensure that defendant’s guilty plea [was] knowing and voluntary'” … . “[S]tatements made by a defendant that negate an element of the crime to which a plea has been entered . . . or otherwise suggest an involuntary plea require[s] the trial court to then conduct a further inquiry or give the defendant an opportunity to withdraw the plea” … .

At sentencing, defendant stated that the sexual conduct started when the victim was 13 years old, not 12 years old. Such statement by defendant negated the element of predatory sexual assault against a child in the first degree that requires that the victim be under the age of 13 (see Penal Law § 130.96). Notwithstanding defendant’s statement, County Court did not make any further inquiry or give defendant an opportunity to withdraw his plea prior to proceeding to sentencing. People v Brassard, 2018 NY Slip Op 07978, Third Dept 11-21-18

CRIMINAL LAW (DURING THE PLEA COLLOQUY DEFENDANT NEGATED AN ELEMENT OF THE CRIME AND THE COURT DID NOT CONDUCT FURTHER INQUIRY, THE ERROR NEED NOT BE PRESERVED FOR CONSIDERATION ON APPEAL, PLEA VACATED (THIRD DEPT))/APPEALS (CRIMINAL LAW, DURING THE PLEA COLLOQUY DEFENDANT NEGATED AN ELEMENT OF THE CRIME AND THE COURT DID NOT CONDUCT FURTHER INQUIRY, THE ERROR NEED NOT BE PRESERVED FOR CONSIDERATION ON APPEAL, PLEA VACATED (THIRD DEPT))/PLEA COLLOQUY  (DURING THE PLEA COLLOQUY DEFENDANT NEGATED AN ELEMENT OF THE CRIME AND THE COURT DID NOT CONDUCT FURTHER INQUIRY, THE ERROR NEED NOT BE PRESERVED FOR CONSIDERATION ON APPEAL, PLEA VACATED (THIRD DEPT))

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THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT).

The Third Department determined Supreme Court should have held a hearing on defendant’s motion to vacate his conviction alleging ineffective assistance counsel. i.e., the failure to move to dismiss the indictment based on a speedy trial violation. Although the People raised a question of fact about whether defendant’s counsel consented to certain adjournments, the issue was not conclusively demonstrated, requiring a hearing:

Defendant argued that he was deprived of effective assistance because his counsel failed to move to dismiss the indictment based on a violation of his statutory speedy trial rights. Failure to make a meritorious speedy trial motion, which would result in dismissal of the indictment, is sufficiently egregious to amount to ineffective assistance… . There is ordinarily no strategic reason for counsel to fail to make a dispositive motion that would result in dismissal of the charges with prejudice, so long as it is shown that the motion would have been successful … . …

The Court of Appeals has clarified that ” [a]djournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel’s failure to object to the adjournment or failure to appear does not constitute consent” … A court may not deny a motion to dismiss for a statutory speedy trial violation “without a hearing unless ‘[a]n allegation of fact essential to support the motion is conclusively refuted by unquestionable proof'” … . ” Of course, only those periods for which the People have not provided ‘unquestionable documentary proof’ — for example, a transcript or letter evidencing defendant’s consent — need be addressed at any hearing” … . At least one court has held that calendar and file jacket notations” do not constitute unquestionable proof to meet the People’s “burden of demonstrating sufficient excludable time” … . People v Matteson, 2018 NY Slip Op 07976, Third Dept 11-21-18

CRIMINAL LAW (VACATE CONVICTION, THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/EVIDENCE (VACATE CONVICTION, THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/ATTORNEYS (INEFFECTIVE ASSISTANCE, (VACATE CONVICTION, THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/VACATE CONVICTION, MOTION TO ( THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/INEFFECTIVE ASSISTANCE (THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))/SPEEDY TRIAL (VACATE CONVICTION,  THERE ARE QUESTIONS OF FACT WHETHER DEFENSE COUNSEL CONSENTED TO ADJOURNMENTS, DEFENDANT’S MOTION TO SET ASIDE HIS CONVICTION ALLEGING INEFFECTIVE ASSISTANCE IN THAT DEFENSE COUNSEL DID NOT MOVE TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT))

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THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the denial of defendant’s request to present an alibi witness was reversible error, despite the fact that a notice of alibi had not been served. The People had opened the door at trial, creating the need to call the alibi witness:

Pursuant to CPL 250.20 (3), “[i]f at the trial the defendant calls such an alibi witness without having served the demanded notice of alibi, . . . the court may exclude any testimony of such witness relating to the alibi defense.” Precluding a criminal defendant from proffering evidence in support of his or her own case implicates the Compulsory Process Clause of the Sixth Amendment… , and, although CPL 250.20 (3) explicitly states that the trial court’s decision to permit a late notice of alibi is discretionary, preclusion is only an appropriate penalty “in the most egregious circumstances”… . When a defendant’s “omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the witness'[s] testimony”… .

… [A]lthough defendant did not serve an alibi notice in response to the People’s demand for same, defendant did not intend to call an alibi witness except that the People — knowing that defendant had testified to having an alibi during the grand jury but that he had not presented that defense at trial — directly elicited testimony … about what defendant was doing on the night of the shooting. In response to follow-up questions by the People, [the witness] provided the alibi witness’s first name and generally discussed that defendant was friends with this person. The People’s question regarding what defendant was doing the night of the shooting was the first reference to defendant’s alibi during the trial, and defendant thereafter sought permission to call his friend … as a witness for the first time. The People, despite raising and pursuing this line of questioning, objected because defendant had not served an alibi notice. Defendant argued that the People opened the door and created the issue and, as a result, defendant should not be precluded from calling Steward. We agree. People v Perkins, 2018 NY Slip Op 07972, Third Dept 11-21-18

CRIMINAL LAW (THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, ALIBI WITNESS, (THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, COMPULSORY PROCESS CLAUSE, THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))/COMPULSORY PROCESS CLAUSE (CRIMINAL LAW, ALIBI WITNESS, THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))/ALIBI WITNESS (THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))

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ONLY SERIOUS MISCONDUCT, NOT CONFLICTS OF INTEREST, JUSTIFIES REMOVAL OF NAMED EXECUTORS, SURROGATE’S COURT REVERSED, MATTER SENT BACK FOR A HEARING (THIRD DEPT).

The Third Department, reversing Surrogate’s Court, determined that the petition seeking letters of administration on the ground that respondents, who were the named executors, had conflicts of interest and had breached their fiduciary duties, should not have been granted. The court explained that named executors can be removed only for serious misconduct, not conflicts of interest. The matter was sent back for a hearing:

“‘[I]t is actual misconduct, not a conflict of interest, that justifies the removal of a fiduciary'”… . Simply put, “a conflict does not make a fiduciary ineligible under SCPA 707, and public policy zealously protects the decedent’s right to name a fiduciary, even one with a conflict” … . Thus, petitioners’ remedy for the alleged conflict of interest lies not in the ineligibility provisions of SCPA 707, but in the provisions of SCPA 702 authorizing the issuance of limited and restricted letters of administration under certain enumerated circumstances.

To that end, SCPA 702 (9) specifically provides for the issuance of limited letters of administration to a party for the purpose of commencing “any action or proceeding against the fiduciary, in his or her individual capacity, or against anyone else against whom the fiduciary fails or refuses to bring such a proceeding.” Indeed, this subdivision is designed to preserve a decedent’s choice of fiduciary “by permitting the appointment of a second limited administrator instead of requiring the disqualification or removal of original fiduciaries where their conflicts of interests preclude them from pursuing claims against themselves or others to the prejudice of other persons interested in the estate” … . For these reasons, we conclude that the conflict alleged did not render respondents ineligible to serve as fiduciaries of decedent’s estate under SCPA 707. Matter of Bolen, 2018 NY Slip Op 08001, Third Dept 11-21-18

TRUSTS AND ESTATES (EXECUTORS, ONLY SERIOUS MISCONDUCT, NOT CONFLICTS OF INTEREST, JUSTIFIES REMOVAL OF NAMED EXECUTORS, SURROGATE’S COURT REVERSED, MATTER SENT BACK FOR A HEARING (THIRD DEPT))/FIDUCIARY DUTY (TRUSTS AND ESTATES, EXECUTORS, ONLY SERIOUS MISCONDUCT, NOT CONFLICTS OF INTEREST, JUSTIFIES REMOVAL OF NAMED EXECUTORS, SURROGATE’S COURT REVERSED, MATTER SENT BACK FOR A HEARING (THIRD DEPT))/EXECUTORS (TRUSTS AND ESTATES, ONLY SERIOUS MISCONDUCT, NOT CONFLICTS OF INTEREST, JUSTIFIES REMOVAL OF NAMED EXECUTORS, SURROGATE’S COURT REVERSED, MATTER SENT BACK FOR A HEARING (THIRD DEPT))

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