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IN THIS “ATTEMPTED CRIMINAL POSSESSION OF A WEAPON” AND “FALSIYFING BUSINESS RECORDS” PROSECUTION, THE PEOPLE DID NOT PROVE DEFENDANT WAS SUBJECT TO A RESTRAINING ORDER ISSUED AFTER A HEARING OF WHICH HE HAD NOTICE AND IN WHICH HE COULD HAVE PARTICIPATED; THEREFORE THE PEOPLE DID NOT PROVE HIS ANSWERING “NO” TO THE QUESTION WHETHER HE WAS SUBJECT TO A RESTRAINING ORDER WAS FALSE; CONVICTIONS REVERSED (THIRD DEPT). ​

The Third Department reversed defendant’s “attempted criminal possession of a weapon” and “falsifying business records” convictions as against the weight of the evidence. Defendant, when attempting to purchase a shotgun, answered “no” to the question whether he was subject to a court order. Although restraining orders were produced by the People, there was no proof any restraining order “was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate” as required by 18 USC 922 (g) (8) (an element of the charged offenses):

… [T]he People failed to prove beyond a reasonable doubt that defendant attempted to buy a shotgun knowing his possession of same was “prohibited by law” (Penal Law § 265.17 [1]). People v Rock, 2024 NY Slip Op 05162, Third Dept 10-17-24

 

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DEFENDANTS FAILED TO MOVE FOR A MISTRIAL BASED ON PLAINTIFF’S COUNSEL’S ALLEGED BEHAVIOR PRIOR TO THE VERDICT; THE ALLEGED BEHAVIOR WAS NOT SO WRONGFUL OR PERVASIVE AS TO JUSTIFY SETTING ASIDE THE VERDICT IN THE INTEREST OF JUSTICE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the motion to set aside the verdict based on the conduct of plaintiff’s counsel should have been denied because (1) no motion for a mistrial was made before the verdict, and (2) counsel’s behavior was not so wrongful and pervasive as to justify setting aside the verdict in the interest of justice. Allegedly, plaintiff’s daughter was raped by defendants’ son, in defendants’ house, during a sleep over. It was alleged defendants were aware of the danger posed by their son:

Although some of counsel’s comments may have been objectionable, because defendants did not move for a mistrial their “argument respecting these remarks [was] not preserved” … . Nor, in our opinion, have defendants shown this to be “the rare case in which the misconduct of counsel for the prevailing party was so wrongful and pervasive as to constitute a fundamental error and a gross injustice warranting the exercise of the trial court’s discretionary power under CPLR 4404 (a) to set aside a verdict in the interest of justice” … . Accordingly, Supreme Court erred in granting defendants’ posttrial motion to set aside the verdict in the interest of justice. Lisa I. v Manikas, 2024 NY Slip Op 05164, Third Dept 10-17-24

Practice Point: To address objectionable courtroom behavior of opposing counsel, a motion for a mistrial should be made before the verdict.

Practice Point: A post-verdict motion to set aside the verdict based upon opposing counsel’s courtroom behavior should not be granted absent “misconduct so wrongful and pervasive as to constitute a fundamental error and a gross injustice.”

 

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THE NYS DEPARTMENT OF HEALTH’S (DOH’S) UPDATED GUIDELINES WHICH PROHIBIT PHYSCIANS WHO TREAT CANCER PATIENTS FROM DISPENSING MEDICATIONS WHICH ADDRESS THE SIDE EFFECTS OF CANCER TREATMENTS ARE “IRRATIONAL” (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, determined the NYS Department of Health’s (DOH’s) definition of “oncological protocol” was irrational. The petitioner provides physician-care to cancer patients, including Medicaid recipients. Physicians who provide care to cancer patients can dispense medications (72-hour supplies) pursuant to the DOH’s “oncological protocol.” In the past, petitioner was dispensing medications which addressed the side effects of cancer treatments, including nausea, pain, vitamins, antibiotics and antipsychotics. Under the 2021 update to the DOH’s guidelines, the oncological protocol no longer covered medications which address the side effects of cancer treatments. That update was deemed “irrational” by the Third Department:

The record before us is replete with evidence of industry guidelines and authoritative medical literature strongly suggesting that respondents’ definition may inhibit the provision of adequate healthcare to oncology patients. This includes evidence of the need for ancillary or concomitant administration of medications presumably excluded from the definition in order to enhance the effects of cancer treatments and/or prevent fatal complications arising therefrom. That evidence also clearly contemplates supportive care medications being administered as part of cancer treatment regimens in order to address the often debilitating side effects of such treatment. Given the complete absence of any medical basis for the line drawn here, and guided by the Legislature’s intent to ensure that its general prohibition against prescriber-dispensing did not unreasonably impede the provision of adequate healthcare services in the context of oncology, we cannot find that the definition of oncological protocol before us is rational. Matter of North Shore Hematology-Oncology Assoc., P.C. v New York State Dept. of Health, 2024 NY Slip Op 05165, Third Dept 10-17-24

Practice Point: Here the Third Department deemed the Department of Health’s guideline which prohibited physicians who treat cancer patients from dispensing medications which address the side effects of cancer treatments “irrational” and therefore unenforceable.

 

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THE JUDGE SHOULD NOT HAVE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING A COLLOQUY TO DETERMINE THE WAIVER WAS VOLUNTARY AND INTELLIGENT; THE INFORMATION IN THE WARRANT DID NOT PROVIDE PROBABLE CAUSE TO SEARCH DEFENDANT’S CELL PHONE, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined the judge should not have summarily denied defendant’s request to represent himself and the motion to suppress evidence retrieved from the defendant’s cell phone should have been granted:

A court may not summarily deny a defendant’s request to represent himself or herself, even if the court believes it to be in the defendant’s best interest to be represented by counsel … . Once defendant made his request, which was unequivocal and timely, County Court was required to conduct a colloquy to determine whether he was making a voluntary and intelligent waiver of his right to counsel … . * * *

… [T]he warrant was supported by [the investigator’s] affidavit, which stated that he believed the phones “may” contain digital data, including call histories, that would evidence the commission of criminal possession of a controlled substance in the third degree. However, the statute requires that a statement of reasonable cause based upon information and belief must also state “the sources of such information and the grounds of such belief” (CPL 690.35 [3] [c]), which was lacking here. Stated differently, even where there is probable cause to suspect the defendant of a crime, law enforcement may not search his or her cell phone unless they have information demonstrating that evidence is likely to be found there; some link sufficient to connect the two must be provided. Our review of the affidavit of probable cause in this case reveals no such link. People v Poulos, 2024 NY Slip Op 05152, Third Dept 10-17-24

Practice Point: A defendant’s request to represent himself should not be summarily denied. The judge must conduct a colloquy to ensure the waiver of the right to counsel is voluntary and intelligent.

Practice Point: Here the search warrant did not demonstrate probable cause to believe the search of defendant’s cell phone would reveal evidence of criminal possession of a controlled substance.

 

NEW YORK STATE’S SELF-FUNDED GOVERNMENT HEALTH PLAN FOR NEW YORK STATE’S PUBLIC EMPLOYEES, THE “EMPIRE PLAN,” IS SUBJECT TO THE INDEPENDENT DISPUTE RESOLUTION (IDR) PROCEDURES IN THE FEDERAL “NO SURPRISES ACT” (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the state’s self-funded government health plan for New York State’s public employees (the Empire Plan) is subject to the independent dispute resolution (IDR) procedures in the federal “No Surprises Act:”

In 2014, the Legislature passed the “Surprise Bill Law” … which protects insureds from being billed directly for healthcare services they did not know were being performed by an out-of-network provider … . Under the law, the “health care plan” of an insured who receives a surprise bill is liable for the costs of the out-of-network services and may attempt to negotiate a reimbursement amount that is less than the amount billed … . “If the health care plan’s attempts to negotiate . . . do[ ] not result in a resolution of the payment dispute . . . , the health care plan shall pay the non-participating provider an amount the health care plan determines is reasonable for the health care services rendered, except for the insured’s co-payment, coinsurance or deductible” … . The law also contains an independent dispute resolution (… IDR) process to address payment disputes, which may be invoked by “[e]ither the health care plan or the non-participating provider” if certain conditions are met … . When invoked, the IDR process assigns the dispute to an independent arbitrator to determine the reasonable fees for services rendered by an out-of-network provider utilizing the factors outlined in Financial Services Law § 604 and the FAIR Health benchmarking database * * *

… [A]fter the US Congress passed the federal No Surprises Act in 2020 … — a statute substantively similar to the state’s Surprise Bill Law — the Empire Plan began using the IDR process set forth in the federal law, which uses different benchmarks to determine the reasonable fees to be paid to an out-of-network provider by an insured’s health care plan … . Joseph v Corso, 2024 NY Slip Op 05170, Third Dept 10-17-24

 

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FAMILY COURT’S RULING THAT A MASSACHUSETTS COURT WAS THE MORE CONVENIENT FORUM FOR THIS CUSTODY MATTER WAS NOT SUPPORTED BY EXPLICIT REFERENCE TO THE STATUTORY FACTORS OR ANY TESTIMONY OR SUBMISSIONS BY THE PARTIES; THE RECORD WAS THEREFORE INSUFFICIENT FOR APPELLATE REVIEW AND THE MATTER WAS REMITTED (THIRD DEPT).

The Third Department, reversing Family Court’s ruling that a Massachusetts court was the most convenient forum for this custody matter, determined Family Court’s failure to place on the record the factors it considered in making its ruling, combined with absence of any testimony, rendered the record inadequate for review, requiring remittal:

“Where, as here, a New York court has continuing jurisdiction over a custody matter, it may decline to exercise such jurisdiction if it determines that New York is an inconvenient forum and that another state is a more appropriate forum” … . A court is obliged to consider eight statutory factors in rendering that determination, and “[t]hose statutory factors include (1) ‘whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child,’ (2) the length of time the children have resided in another state, (3) the distance between the two states in question, (4) the relative financial circumstances of the parties, (5) any agreement among the parties regarding jurisdiction, (6) the nature and location of relevant evidence, including testimony from the children, (7) the ability of each state to decide the issue expeditiously and the procedures necessary to present the relevant evidence, and (8) the familiarity of each court with the relevant facts and issues” (… Domestic Relations Law § 76-f [2] [a]). Notably, the “determination depends on the specific issues to be decided in the pending litigation, and must involve consideration of all relevant factors, including those set forth in the statute” … .

… Family Court did not explicitly refer to the statutory factors during its conference with the Massachusetts court, which was essentially a back-and-forth between the judges on issues that included the language of the prior custody orders, the nature of the cases presently before them and the differences between New York and Massachusetts laws governing custody proceedings. The parties were not invited to, and did not, offer any testimony regarding the relative convenience of the two forums. Matter of Mark AA. v Susan BB., 2024 NY Slip Op 05173, Third Dept 10-17-24

Practice Point: Here Family Court did not make an adequate record to support its ruling that a Massachusetts court was the more convenient forum for this custody matter. There were no submissions by the parties and there was no testimony. The statutory factors were not explicitly referenced. The matter was remitted.

 

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THE HEARING OFFICER RECOMMENDED THAT JUSTICE DD, A SEVERELY DISABLED MAN, REMAIN AT HIS CURRENT PLACEMENT IN MASSACHUSETTS AND NOT BE MOVED TO A NEW PLACEMENT IN NEW YORK; THE COMMISSIONER OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES (OPWDD), NEARLY A YEAR LATER, REJECTED THE HEARING OFFICER’S RECOMMENDATION AND ORDERED THE NEW PLACEMENT; BECAUSE JUSTICE DD’S CONDITION HAD WORSENED DURING THAT TIME, THE COMMISSIONER’S DETERMINATION WAS ANNULLED (THIRD DEPT).

The Third Department annulled the determination of the Office for People with Developmental Disabilities (OPWDD). The Commissioner of the OPWDD rejected the hearing officer’s findings and ordered that Justice DD, the disabled man, be removed from his current placement in Massachusetts and placed in New York. The Third Department held that the nearly one-year delay between the hearing officer’s recommendation that Justice DD remain placed in Massachusetts and the Commissioner’s rejection of the recommendation, during which Justice DD’s condition had deteriorated, required annulment of the Commissioner’s ruling:

… [D]espite the Legislature’s use of the word “shall” in specifying that respondent [the Commissioner] is to issue a determination within 30 days of adjournment of the hearing, this language was merely directory based upon the absence of any “specific consequence to flow from the administrative agency’s failure to act in violation of the time limit” … .

“When an administrative body fails to comply with procedural provisions that are merely directory, relief will be granted only if petitioners show that substantial prejudice resulted from the noncompliance” … . We find that petitioners have made such a showing here and, as a result, respondent “must face the consequences of [her] delays” … . Matter of Hannah DD. v Neifeld, 2024 NY Slip Op 05167, Third Dept 10-17-24

Practice Point: The regulation that requires the Commissioner of the OPWDD to make a ruling on the placement of a disabled person within 30 days of the adjournment of the hearing is merely “directory,” not “mandatory.” However, if, as here, the failure to issue the ruling within 30 days results in prejudice to the disabled person, the delay is a valid ground for annulment of the Commissioner’s ruling.​

 

DEFENDANT WAS CHARGED WITH PREDATORY SEXUAL ASSAULT AGAINST A CHILD, A CLASS A-II FELONY PUNISHABLE BY A MANDATORY MAXIMUM TERM OF LIFE IMPRISONMENT; PURSUANT TO CRIMINAL PROCEDURE LAW 195.10[1][B] DEFENDANT CANNOT WAIVE INDICTMENT AND PLEAD TO A SUPERIOR COURT INFORMATION (SCI) (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction by guilty plea to a superior court information (SCI), determined defendant could not waive indictment to an A felony for which a life sentence is available:

CPL 195.10 provides, in relevant part, that a defendant may waive indictment and consent to be prosecuted pursuant to an SCI where “the defendant is not charged with a class A felony punishable by death or life imprisonment” (CPL 195.10 [1] [b] …). Predatory sexual assault against a child is a class A-II felony and “is punishable by an indeterminate sentence with a mandatory maximum term of life imprisonment” (… Penal Law §§ 70.00 [2] [a]; 130.96). Hence, consistent with both CPL 195.10 and prevailing case law, a waiver of indictment “is not available where the defendant is charged with a class A felony” … . Defendant’s waiver of indictment was therefore “expressly prohibited under CPL 195.10 and . . . invalid, rendering the resulting procedure employed to procure defendant’s guilty plea unauthorized” … .  Accordingly, defendant’s guilty plea must be vacated and the SCI dismissed … . People v White, 2024 NY Slip Op 04850, Third Dept 10-3-24

Practice Point: A defendant cannot waive indictment and plead to a superior court information (SCI) when charged with an A-II felony punishable by an indeterminate sentence with a mandatory maximum term of life imprisonment.

 

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DEFENDANT WAS ENTITLED TO NOTICE COUNTY COURT INTENDED TO RELY ON FAMILY COURT RECORDS WHEN CONSIDERING DEFENDANT’S APPLICATION FOR RECLASSIFICATION AS A LEVEL-ONE SEX OFFENDER; THE THIRD DEPARTMENT NOTED THAT THE PROPER INQUIRY IS WHETHER RECLASSIFICATION IS WARRANTED BY A CHANGE IN CONDITIONS, NOT WHETHER THERE IS SUPPORT FOR THE INITIAL LEVEL-TWO CLASSIFICATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to be notified of County Court’s intention to rely on Family Court records in considering defendant’s application to be reclassified as a level one sex offender. The matter was remitted for a new hearing:

Upon his release from incarceration in 2003, defendant was classified as a risk level two sex offender and designated a sexually violent offender. In 2020, defendant applied, for the fifth time, for a modification of his risk level classification pursuant to Correction Law § 168-o (2), seeking to be reclassified as a risk level one sex offender as his conditions have changed subsequent to the initial risk level classification given, among other things, that he has remained arrest free, successfully completed sex offender treatment while incarcerated and gained custody of his daughter, which helped him understand the impact of his underlying criminal actions. * * *

In discrediting defendant’s sworn statements in support of his application and in finding his statements to be misleading, County Court relied heavily upon various Family Court proceedings, including neglect proceedings as far back as 2012, and a family offense petition containing allegations against defendant [*2]that were subsequently withdrawn. The court detailed the allegations in the petitions, finding that the allegations contradicted defendant’s sworn statements in his application and that, by excluding such information from his sworn affidavit, defendant attempted to mislead the court. Defendant was not given an opportunity to respond to or defend himself against consideration of such information. * * *

… Contrary to County Court’s finding here, the proper level of review is not whether there is clear and convincing evidence to support defendant’s initial risk level classification, but rather, whether defendant has met his burden of establishing by clear and convincing evidence that a modification of his risk assessment level is warranted based upon a change in conditions. People v Johns, 2024 NY Slip Op 04640, Third Dept 9-26-24

Practice Point: In a SORA risk-level assessment proceeding, a defendant is entitled to timely notice of the court’s intention to rely on additional information of which defendant had not been made aware, here Family Court records.

Practice Point: When a defendant applies for reclassification of his sex offender risk level status (here from level two to level one), the court’s inquiry should be confined to whether a change in conditions warrants reclassification, not whether the original classification was justified.

 

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COUNTY COURT, SUA SPONTE, IN GRANTING THE PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE, RELIED ON FACTORS ABOUT WHICH THE DEFENDANT WAS NOT NOTIFIED BEFORE THE SORA HEARING; MATTER REMITTED FOR A NEW HEARING AFTER PROPER NOTICE (THIRD DEPT).

The Third Department, reversing County Court, determined the SORA court should not have, sua sponte, relied on factors for which defendant was not provided notice in granting the People’s request for an upward department. The matter was remitted:

County Court sua sponte relied upon certain additional factors for which defendant was not provided any notice — namely, that the points assessed under factor 4 did not adequately account for defendant’s prolonged course of conduct that continued over 21 months; that defendant was not scored any points under factor 7, which did not take into account defendant’s relationship with the mother of the victim that was arguably established or promoted for the primary purpose of victimizing the mother’s child; and that defendant’s psychiatric conditions and history increase his risk of reoffending.

With regard to these three additional areas of concern noted by County Court, “defendant was entitled to a sufficient opportunity to consider and muster evidence in opposition to the request for an upward departure” on the specific bases upon which County Court would rely in considering that relief … . “As defendant did not have notice or a fair opportunity to present arguments and evidence pertaining to those factors in the context of whether upward departure from the presumptive classification was warranted, the matter must be remanded for a new hearing, upon proper notice to defendant of the justifications relied upon by the People [and/or court] specific to their request for such relief” … . People v Furgeson, 2024 NY Slip Op 04644, Third Dept 9-26-24

Practice Point: A defendant is entitled to prior notice of the factors which will be considered by the court during a SORA risk-level assessment proceeding.​

 

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