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In the Absence of a Colloquy Conducted by the Court, the Circumstances Indicated that Mother Knowingly, Intelligently and Voluntarily Waiver Her Right to Counsel In a Custody Proceeding

In the course of a decision affirming Family Court’s finding that a change of circumstances warranted modification of the custody arrangement, the Third Department determined the mother had knowingly, intelligently and voluntarily waived her right to counsel.  In the absence of a colloquy conducted by the court, the Third Department found that the relevant circumstances indicated the waiver was valid:

“[A]; party is entitled to self-representation once the court determines that the decision to do so is knowingly, intelligently and voluntarily made. Although it is preferable that the court’s determination be made following an appropriate colloquy with the party on the record, it may also be made upon an examination of all the potential relevant circumstances” .. . Here, at the initial court appearance on April 8, 2011, the mother was represented by an attorney, whom she states was assigned. By the next court date, July 15, 2011, she had terminated the services of the assigned attorney and appeared with a substituted retained attorney. At the next appearance, the father told the court that he was switching attorneys and, at the ensuing appearance on August 10, 2011, the mother informed the court that she wanted to terminate the services of her retained attorney. Her attorney was present and, after confirming that the mother had discussed such action with the attorney, the court permitted the attorney to withdraw.

Noting the multiple adjournments and delays that had occurred by such time, many caused by the switching of attorneys by both parties, the mother was admonished to obtain substitute counsel before the next court date. Over a month later, on September 14, 2011, the mother appeared and stated that she had not been able to retain a new attorney and was involved in a dispute with her former retained attorney about fees. The court stated that it would grant yet another adjournment, but that a trial date would be set with no more adjournments permitted, and the court also reminded the mother that she could apply for assigned counsel. The mother next appeared on November 30, 2011, stating that she was representing herself and that she was ready to proceed with the hearing. The mother had already appeared and prepared documents in many of the proceedings pertaining to the child without an attorney and, among other things, she had obtained subpoenas for several witnesses prior to the hearing. Under all the circumstances, we are satisfied that the record sufficiently reflects that the mother waived her statutory right to counsel knowingly, intelligently and voluntarily… . Matter of Joshua UU v Martha VV, 2014 NY Slip Op 04089, 3rd Dept 6-5-14

 

Nature of a Repugnant Verdict Explained—Here the Verdict Convicting Defendant of Criminal Possession of a Controlled Substance and Acquitting Defendant of Criminal Sale of a Controlled Substance Was Not Repugnant—The Proof at Trial Plays No Part in the Repugnancy Analysis

The Third Department determined County Court should not have determined a verdict was repugnant and sent the jury back for further deliberations.  The Third Department vacated the defendant's conviction on the relevant count.  In the course of the decision the Third Department explained the nature of a repugnant verdict, noting that the proof at trial plays no part in the analysis:

Contrary to defendant's assertion, the jury's initial verdict — convicting him of criminal possession of a controlled substance in the third degree and acquitting him of criminal sale of a controlled substance in the third degree — was not repugnant. “[A]; verdict as to a particular count shall be set aside [as repugnant]; only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury” … . In assessing a repugnancy claim, “we must review the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial. Thus, [i];f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support. . . . In this context, the apparently illogical nature of the verdict — as opposed to its impossibility — is viewed as a mistake, compromise or the exercise of mercy by the jury, none of which undermine[s]; a verdict as a matter of law” … .

Here, upon reviewing the elements of the subject offenses, it is readily apparent that the jury's verdict was not repugnant. Criminal sale of a controlled substance in the third degree requires proof that the defendant knowingly and unlawfully sold a narcotic drug (see Penal Law § 220.39 [1]), whereas criminal possession of a controlled substance in the third degree requires only, insofar as is relevant here, that the defendant knowingly and unlawfully possessed a narcotic drug with intent to sell it (see Penal Law § 220.16 [1]). Notably, a “[d];efendant's acquittal on the [sale count]; does not negate the elements of the [possession count], for a person can possess and intend to sell a narcotic drug, but not actually accomplish a sale” … . Defendant's argument to the contrary is predicated upon the specific proof adduced at trial, which — the Court of Appeals has instructed — is to play no role in our analysis of a repugnancy claim … . As the jury's initial verdict was not repugnant, County Court should have denied defendant's motion, accepted the jury's verdict and adjourned the matter for sentencing. Instead, County Court implicitly granted defendant's motion, devised a special verdict sheet and directed the jury to resume deliberations. People v Kramer, 2014 NY Slip Op 04085, 3rd Dept 6-5-14

 

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Taking a Position Adverse to Client’s Pro Se Motion to Withdraw a Guilty Plea Constitutes Ineffective Assistance of Counsel

The Third Department noted that counsel may not take a position adverse to the client’s pro se motion to withdraw a guilty plea.  To do so constitutes ineffective assistance of counsel:

We agree with defendant’s contention that he received ineffective assistance of counsel inasmuch as his new counsel took a position adverse to his with regard to the motion to withdraw his plea. “While defense counsel is not required to support a pro se motion to withdraw a guilty plea, counsel ‘may not take a position . . . that is adverse to the defendant'” … . Although defendant was properly permitted to obtain a new attorney, he was denied the effective assistance of counsel when such counsel “affirmatively undermined arguments [that defendant]; wished the court to review” … . Accordingly, the matter must be remitted for reconsideration of defendant’s motion, for which he must be represented by new counsel. People v Russ, 2014 NY Slip Op 04084, 3rd Dept 6-5-14

 

Parole Violators May Apply for Resentencing Under Drug Law Reform Act—County Court Properly Denied the Application Based Upon the Nature of Defendant’s Convictions and Serious Prison Infractions

In affirming County Court’s denial of defendant’s motion for resentencing under the Drug Law Reform Act, the Third Department noted that the fact that defendant violated parole did not prevent him from applying for resentencing:

While parole violators may indeed apply for resentencing, denial of such an application may be warranted if they “have shown by their conduct that they do not deserve relief from their sentences” … . Defendant has a violent criminal history and, indeed, his most recent criminal conviction and parole violation stem from his possession of a defaced and loaded handgun. The record further reveals that defendant has a lengthy record of serious prison disciplinary infractions, many of them involving violence. We thus find that, notwithstanding defendant’s positive programming achievements while incarcerated, “County Court properly exercised its discretion in finding that substantial justice would not be served by resentencing” him … . People v Allen, 2014 NY Slip Op 04087, 3rd Dept 6-5-14

 

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Court Is Not Required to Notify Defendant of His Right to Contest the Constitutionality of His Prior Conviction Before Sentencing Defendant as a Second Felony Offender

The Third Department noted that the sentencing court was not required to notify defendant of his right to contest the constitutionality of his prior conviction before sentencing defendant as a second felony offender:

” ‘County Court was not obligated to expressly advise defendant of his right to contest the constitutionality of the prior conviction'” … . Here, the record reveals that defendant was provided with the prior felony information before sentencing and, while represented by counsel during sentencing, declined to deny or controvert any of the allegations in the information. Accordingly, County Court substantially complied with the requirements of CPL 400.21 (3), and defendant was properly sentenced as a second felony offender … . People v Wilkins, 2014 NY Slip Op 04083, 3rd Dept 6-5-14

 

Petitioner Not Given Adequate Employee Assistance—Determination Annulled—New Hearing Ordered

The Third Department determined the petitioner was entitled to a new hearing because a report he requested was never provided to him, and no explanation for the failure to provide the report was made:

…[W]e agree with petitioner’s contention that he was denied adequate employee assistance. Specifically, the record reflects that petitioner’s assistance form requested the “injury report,” but the record does not reveal that petitioner was either provided with the report or informed that it did not exist. While the Hearing Officer noted petitioner’s request at the hearing and advised petitioner that he would check into this, no further mention of this issue was made. Under these circumstances, we cannot say on this record that such omission did not prejudice petitioner’s defense, and the determination must be annulled … . Matter of Rupnarine v Prack, 2014 NY Slip Op 04093, 3rd Dept 6-5-14

 

Mother’s Consent to Adoption Not Required

The Third Department determined mother’s consent to adoption was not required due to her failure to seek treatment for drug and alcohol problems and lack of contact with the child:

“Consent to adoption is not required of a parent who ‘evinces an intent to forego his or her parental or custodial rights and obligations as manifested by his or her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so'” … . “Once the petitioner makes such a showing by clear and convincing evidence, the burden shifts to the parent to demonstrate sufficient contact or an inability to engage in such contact”… . * * *

The record not only reflects that the mother failed to demonstrate an acceptable reason for the absence of contact or communication for over six months, but also that the impediments contributing to such absence of contact resulted from the mother’s own acts and lack of effort … . Matter of Lori QQ, 2014 NY Slip Op 04105, 3rd Dept 6-5-14

 

Parole Conditions Did Not Require Parolee to Report Brief, Incidental Contact with Children to His Parole Officer—Parole Violation Determination Annulled

The Third Department annulled the finding that petitioner had violated his parole by not reporting brief contact with a child.  Petitioner was doing construction work when a coworker’s daughter emerged briefly approached petitioner and the coworker:

“It is well established that a parole revocation decision will be upheld so long as ‘the procedural requirements were followed and there is evidence which, if credited, would support such determination'” … . Notably, in order to warrant revocation, the alleged parole violation must be supported by a preponderance of the evidence (see Executive Law § 259-i [3]; [f]…), which we find lacking in the record before us. * * *

The parole conditions did not clearly require petitioner to report such an insignificant encounter to his parole officer, however, and petitioner testified that he did not know that he needed to do so. Further, while the coworker’s children were occasionally present during lunch breaks at the work site, they largely remained outside the eating area and there was no showing that petitioner had any contact with the children during such times. In view of this, petitioner’s parole conditions did not plainly require him to report such information to his parole officer. Accordingly, given the absence of probative evidence supporting the charge that petitioner failed to truthfully report his activities to his parole officer, the determination finding that he violated his parole in this regard must be annulled… . Matter of Peck v Evans, 2014 NY Slip Op 04107, 3rd Dept 6-5-14

 

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Lack of Standing Defense Waived By Absence from Answer—Objections to Authority to Sign Lease Waived by Ratification of the Signed Documents

The Third Department, in a dispute over what was due and owing under a lease agreement, determined the “lack of standing” defense had been waived by the failure to raise it in the answer, and allegedly unauthorized execution of relevant documents had been ratified:

Initially, defendant claims that plaintiff lacks standing to enforce any obligations created by the lease or confirmation agreement, as it was not a party to either document. We agree with Supreme Court that this claim was waived by defendant’s failure to assert it in the answer (see CPLR 3211 [a]; [3]; [e]…).. Defendant further argues that the confirmation agreement is not legally valid, as it was not signed by plaintiff and … PDC [the original lessor, Provident Development Corporation] had transferred the building to plaintiff prior to executing the confirmation agreement. However, “[a];n unauthorized execution of an instrument affecting the title to land or an interest therein may be ratified by the owner of the land or interest so as to be binding upon him [or her];” … . Such a ratification may be shown by the owner’s failure to timely repudiate the unauthorized actions, or by conduct consistent with an intent to be bound … . Here, plaintiff has never repudiated PDC’s execution of the confirmation agreement; on the contrary, the record reveals that, beginning on the commencement date established by the agreement and continuing through 2011, plaintiff regularly invoiced defendant for payments due at the intervals and in the amounts specified in that agreement and accepted defendant’s resulting payments — thus ratifying the confirmation agreement by accepting benefits due thereunder … . Provident Bay Rd LLC v NYSARC Inc, 2014 NY Slip Op 03895, 3rd Dept 5-29-14

 

Violation of Defendant’s Right to Remain Silent Was Harmless Error—Elements of “Extreme Emotional Disturbance” Defense to Murder Explained

The Third Department, over a dissent, determined that the error in eliciting testimony, in violation of defendant’s post-Miranda right to remain silent, about defendant’s failure to apprise law enforcement that he shot the victims while under extreme emotional disturbance, was harmless error.  The decision includes a detailed discussed of the relevant criteria for “extreme emotional disturbance:”

As the Court of Appeals has instructed, the extreme emotional disturbance defense is comprised of both subjective and objective elements. “The subjective element focuses on the defendant’s state of mind at the time of the crime and requires sufficient evidence that the defendant’s conduct was actually influenced by an extreme emotional disturbance” …, i.e., “that the [defendant’s]; claimed explanation as to the cause of his [or her]; action [was]; not contrived or [a]; sham” … . This subjective element is “generally associated with a loss of self-control” … . The objective element, in turn, “requires proof of a reasonable explanation or excuse for the emotional disturbance . . . [, which]; must be determined by viewing the subjective mental condition of the defendant and the external circumstances as the defendant perceived them to be at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for [the]; emotional disturbance was reasonable” … .

To be sure, the extreme emotional disturbance defense “is significantly broader in scope than the ‘heat of passion’ doctrine [that]; it replaced” … and, for that reason, the “[a];ction[s]; influenced by [such defense]; need not be spontaneous” … . “‘Rather, it may be that a significant mental trauma has affected a defendant’s mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore'” … . That said, evidence demonstrating a defendant’s “high degree of self-control” … , as well as any “postcrime conduct . . . suggest[ing]; . . . that [the defendant]; was in full command of his [or her]; faculties and had consciousness of guilt” … , is entirely inconsistent with an extreme emotional disturbance defense.  People v Pavone, 2014 NY Slip Op 03881, 3rd Dept 5-29-14

 

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