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Father’s Incarceration Justified a Modification of Custody/Sole Custody Awarded to Mother

The Third Department upheld Family Court’s finding father’s incarceration justified a modification of custody and the grant of sole custody to the mother:

Initially, we note the absence of anything in the record to indicate that, but for the father’s incarceration, joint custody would not have continued to be appropriate.  Nonetheless, the father’s incarceration presented logistical restrictions on the parties’ ability to effectively and efficiently communicate with each other, rendered shared physical custody impossible and generally created limitations on the father’s ability to fulfill his obligations as a custodial parent … .  In this regard, the mother testified that, while the father was incarcerated, she made all of the decisions regarding the child and the father did not initiate any contact with her about the child.  Notwithstanding the father’s testimony that he had liberal access to a telephone and email, the mother was unaware that she could call him and testified that it normally took him at least one day to respond to her emails.

Additionally, the father acknowledged that the mother could not reach him while he was at work five days a week for several hours each day and that he had, at times, exhausted his monthly allotted telephone time.  Further, the father was unable to identify the child’s medical provider or teacher, which reflected his limited involvement in the child’s daily life.  After considering the appropriate factors relevant to custody determinations … and according deference to Family Court’s ability to observe the witnesses and assess their credibility …, we find a sound and substantial basis for that court’s determination that an award of sole physical and legal custody to the mother was in the child’s best interests… . Matter of Breitenstein v Stone, 514316, 3rd Dept 12-19-13

 

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Defendant-Doctor in a Medical Malpractice Action May Be Questioned (by the Plaintiff) As an Expert About His Own Treatment of Plaintiff

The Third Department determined (1) the defendant doctor in a medical malpractice action can be deposed as an expert (by the plaintiff)  with respect to his treatment (the doctor was asked whether the treatment as described in the records deviated from the standard of care); (2) the defendant doctor must answer the question whether he has given any statements to a quality assurance committee, even though the statements themselves would be privileged; (3) substantial changes to deposition testimony in an errata sheet would be allowed, but, based on the substantive nature of the changes, further deposition of the witness was appropriate as well.  With respect to questioning the defendant doctor as an expert about his own treatment, the court wrote:

In the context of a medical malpractice action, the Court of Appeals has held that “a plaintiff . . . is entitled to call the defendant doctor to the stand and question him [or her] both as to his [or her] factual knowledge of the case (that is, as to his [or her] examination, diagnosis, treatment and the like) and, if he [or she] be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community” … .  Thus, although “one defendant physician may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness[,] [w]here . . . the opinion sought refers to the treatment rendered by the witness, the fact that it may also refer to the services of a codefendant does not excuse the defendant witness from [being deposed] as an expert” … . Lieblich … v Saint Peter’s Hospital of the City of Albany…, 516736, 3rd Dept 12-19-13

 

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No Standing to Challenge Governmental Action—No Injury-In-Fact and the Type of Potential Injury Alleged Does Not Fall Within the Zone of Interest Underlying the Statute

The Third Department determined that the petitioners, manufacturers of electronically-operated partitions used in school buildings, did not have standing to bring an action compelling the NYC Department of Education to comply with the Education Law (Education Law 409-f) and regulations with respect to the maintenance of the partitions.  The petitioners argued that they are subject to liability if the partitions are not maintained in accordance with the law:

The two-part test for the threshold legal requirement of standing to challenge governmental action requires, first, an injury-in-fact and, second, that the injury “fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision” … .  Petitioners contend that they have been injured in that their employees might get hurt working on improperly maintained safety devices, they are potentially exposed to litigation if a device installed by them is not properly maintained by respondents and causes injury, and their insurance premiums have increased due to heightened exposure to liability.  We agree with Supreme Court that petitioners are essentially asserting a general challenge to respondents’ administration of the relevant statute and regulation …and further that their asserted injuries are too speculative and conjectural to satisfy the injury-in-fact requirement … .

Even if a sufficient injury-in-fact was asserted, petitioners also failed to show that they are within the zone of interests sought to be protected by the statute and regulation. Enacted after the tragic death of a young student crushed by a school partition …, the purpose of the law was to protect primarily students … and not individuals paid to work specifically on the safety devices. … . Matter of Gym Door Repairs, Inc v New York City Department of Education, 516661, 3rd Dept 12-19-13

 

 

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Horse Deemed a “Companion Animal”/Aggravated Cruelty to Animals Conviction Upheld

The Third Department affirmed defendant’s convictions, which stemmed from the killing of a horse.  The court determined the horse was a “companion animal” within the meaning of the Agricultural and Markets Law and, therefore, the elements of aggravated cruelty to animals were proven:

…[D]efendant claims that the charge of aggravated cruelty to animals was jurisdictionally defective for failure to allege a material element of the crime, arguing that the horse was not a “companion animal” (Agricultural and Markets Law § 353a [1]…).  However, horses are excluded from the statutory definition of companion animals only when they are “‘[f]arm animal[s]’ . . . raised for commercial or subsistence purposes” (Agricultural and Markets Law § 350 [4]).  Any domesticated animal, including a horse, may be a companion animal where, as here, it is not kept for such purposes and is “normally maintained in or near the household of the owner or person who cares for [it]” (Agricultural and Markets Law § 350 [5] ….  Likewise, there was no jurisdictional defect in the charge of criminal mischief in the second degree by intentionally damaging the property of another, as a companion animal is property (see Penal Law § 145.10…). People v Lohnes, 104483, 3rd Dept 12-19-13

 

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Failure to Call One of the Parties Who Signed a Drug-Analysis Report Did Not Violate the Confrontation Clause/No Evidence the Party Conducted Any Testing or Analysis

The Third Department determined that the Confrontation Clause was not violated because a party [Lafond] who had signed the report identifying the controlled substance defendant was accused of selling did not testify.  The court determined Lafond had nothing to do with the chemical tests and analysis.  The party who actually did the chemical tests and analysis, Brant, testified:

…Brant – the analyst who identified the oxycodone, performed the chemical tests on it, determined the nature of the substance, and authored the report – in fact testified and was subject to crossexamination … .  The report is certified pursuant to CPL 190.30 (2) with the following language: “I, Clifford E. Brant, . . . hereby certify” and then states that it is “my [i.e. Brant’s] report and contains the opinions and interpretations of the examination I performed in the above referenced case” (emphasis added).  Brant also testified that Lafond cosigned the report after an administrative review of it, as required by State Police protocol.  There is no support in the record for the proposition that Lafond examined or analyzed the substance, observed Brant doing so, or was signing the report in that capacity.  Indeed, Brant testified that after he alone performed the forensic chemical testing, he sealed, signed and dated the laboratory bag containing the pill, which remained intact as of the trial, supporting the conclusion that Lafond only read and signed the report after it was completed to ensure that proper procedure was followed …, and she had no role in ascertaining or verifying the identity of the substance in issue.  Thus, the “actual analyst who performed the tests” … and “wr[o]te [the] report[]” … testified.   We find that Lafond, who neither analyzed the substance in issue nor authored the report, was not a “witness” against defendant for purposes of the Confrontation Clause … and, accordingly, no Crawford violation occurred as a result of the People admitting Brant’s report into evidence without calling Lafond to testify. People v Wolz, 104909, 104910, 3rd Dept 12-19-13

 

New Trial Ordered: Juror Found “Grossly Unqualified” by the Trial Judge Should Have Been Dismissed/One Juror Was Absent from the Deliberations for About An Hour

The Third Department ordered a new trial was because one of the juror’s, juror No. 4 should have been dismissed after the trial court determined that the juror was “grossly unqualified,” and because deliberations continued while juror No. 4 was absent from the jury room for about an hour:

“If at any time after the trial jury has been sworn and before the rendition of its verdict, . . . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case . . . , the court must discharge such juror” (CPL 270.35 [1]…  ).  “A juror will be deemed to be grossly unqualified to serve only when, after conduct[ing] a probing, tactful inquiry into the specific circumstances, it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict” … .  Although the trial court traditionally is accorded “great deference in deciding whether a juror is grossly unqualified” …, inasmuch as juror No. 4 repeatedly expressed her inability to render a decision one way or the other, and County Court expressly found that she was both grossly unqualified to serve and unable to afford either the People or defendant a fair trial, County Court erred in failing to discharge juror No. 4… .

Moreover, even assuming that we discerned no impropriety with respect to juror No. 4’s continued service on the jury, we nonetheless would be compelled to reverse defendant’s conviction and order a new trial, as it is readily apparent from the record that the jury deliberated – on at least one occasion – with fewer than 12 members present.  CPL 310.10 (1) provides, in relevant part, that “[f]ollowing the court’s charge, . . . the jury must retire to deliberate upon its verdict in a place outside the courtroom . . . and must, except as otherwise provided in [CPL 310.10 (2)], be continuously kept together under the supervision of a court officer.”  Consistent with the provisions of CPL 310.10 (2), “[a]t any time after the jury has been charged or commenced its deliberations, and after notice to the parties and affording such parties an opportunity to be heard on the record outside of the presence of the jury, the court may declare the deliberations to be in recess and may thereupon direct the jury to suspend its deliberations and to separate for a reasonable period of time to be specified by the court.”  Additionally, “[b]efore each recess, the court must . . . direct [the jury] not to resume its deliberations until all twelve jurors have reassembled in the designated place at the termination of the declared recess.” * * *

Here … juror No. 4 was absent from the jury room for slightly more than one hour… . People v Cridelle, 104319, 3rd Dept 12-19-13

 

Restitution Hearing Required/Insufficient Proof to Substantiate the Amount/Conclusory Admission by Defendant Not Enough

The Third Department determined defendant was entitled to a restitution hearing, noting that the record did not include proof sufficient to substantiate the restitution amount.  The defendant’s stating a dollar amount, or a conclusory admission of the amount in a plea agreement, is not enough to meet the court’s and the People’s burden:

A restitution hearing “must be held where the record lacks sufficient evidence for a court to determine the amount of restitution ordered or the defendant requests such a hearing” … .  Although a defendant’s statement at the time of the plea or sentencing can constitute sufficient evidence, that statement must include a concession of facts concerning the amount of loss; a defendant merely stating a dollar amount or making a conclusory admission as part of a plea agreement will not satisfy the court’s obligation or the People’s burden … .  At sentencing here, defendant requested a hearing.  Additionally, despite defendant’s plea agreement, including a condition that he pay a specific amount of restitution, the record does not include sufficient proof to substantiate that amount.   Thus, we must remit for a restitution hearing… . People v Johnson, 104064, 3rd Dept 12-19-13

 

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Defendant Entitled to a Hearing on His Motion to Vacate His Conviction/Defendant Alleged He Would Not Have Pled Guilty Absent His Attorney’s Affirmative Misinformation About the Deportation Consequences of the Plea

The Third Department, in a full-fledged opinion by Justice Spain, determined defendant was entitled to a hearing on his motion to vacate his conviction based on the allegation defense counsel gave defendant affirmative misinformation about the deportation consequences of his guilty plea:

Defendant’s motion to vacate sufficiently raises a question as to whether trial counsel provided him with affirmative misinformation regarding the deportation consequences of his guilty plea and adequately alleges facts that, if credited, show a reasonable probability that, but for counsel’s erroneous assurances in this regard, defendant would have insisted on going to trial … . Accordingly, defendant is entitled to a hearing on the issues raised in his CPL 440.10 (1) (h) motion and the order must, therefore, be reversed… . People v Diallo, 104609, 3rd Dept 12-19-13

 

 

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Motion to Renew Based Upon New Evidence Should Have Been Granted/Request to Depose Knowledgeable Witnesses In Addition to the Witnesses Initially Provided by the Municipality Should Have Been Granted

The Third Department determined a motion to renew based upon newly discovered evidence and a motion to depose additional knowledgeable witnesses (from the municipality) should have been granted:

To be entitled to renewal, plaintiffs were required to provide new facts that would change the prior determination as well as a justifiable excuse for not providing such facts earlier (see CPLR 2221 [e] [2], [3]…).  “While we generally decline to disturb the decision to grant or deny a motion to renew, we will do so if there was an abuse of discretion” … . * * *

Renewal of that part of plaintiffs’ motion which sought the production of knowledgeable witnesses should have, to a large extent, also been granted.  “While a municipality, in the first instance, has the right to determine which of its officers or employees with knowledge of the facts may appear for an examination before trial, a plaintiff may demand the production of additional witnesses, upon a showing that the representative already deposed had insufficient knowledge or was otherwise inadequate”… . Hurrel-Harring… v State of New York…, 517132, 3rd Dept 12-19-13

 

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In a Class Action Suit, Class-Representatives’ Failure to Keep In Touch With Their Lawyer Justified Their Withdrawal as Class Representatives

The Third Department determined Supreme Court should have allowed representatives of the class (in a class action lawsuit) to withdraw based upon the representatives’ failure to keep in touch with their lawyer:

Supreme Court abused its discretion in declining to permit the seven class representatives to withdraw from this action. CPLR 3217 (b) provides that an action or proceeding may be discontinued “upon order of the court and upon terms and conditions, as the court deems proper.”  While the decision to grant such an application is generally committed to the sound discretion of the trial court …, a party cannot ordinarily be compelled to litigate and, absent special circumstances – such as prejudice to a substantial right of the defendant or other improper consequences – discontinuance should be granted … . * * *

Class representatives have a duty to adequately and vigorously represent the interests of class members … .  Thus, if a class representative fails to maintain contact with class counsel or is otherwise no longer willing or able to serve in that capacity, he or she cannot fulfill the duties of a class representative and should withdraw … .  The remedy under such circumstances is not to penalize the entire class by forcing an unwilling plaintiff to remain in the litigation. Hurrel-Harring v State of New York, 517131, 3rd Dept 12-19-13

 

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