You are here: / Third Department

Tag Archive for: Third Department

Criteria for Reduction or Termination of Father’s Child Support Obligations Not Met/No Showing Wife Interfered with Access to Child/No Showing of Unjustified Abandonment by Child

The Third Department affirmed Family Court’s determination that the father’s child support obligations for his 18-year-old son should not be reduced or terminated.  The court described the relevant criteria:

Generally, a parent in this state is obligated to support his or her child until the child turns 21 (see Family Ct Act § 413 [1] [a]).  However, a noncustodial parent’s child support obligation may be suspended where such parent establishes that “the custodial parent unjustifiably frustrat[ed] the noncustodial parent’s right of reasonable access” … .  On the record before us, we agree with Family Court’s determination that the father failed to establish that the mother unjustifiably interfered with his visitation.  * * *

…[W]e similarly conclude that the record supports a finding that the father’s support obligation should not be terminated based upon the son’s refusal to have contact with him.  A child’s right to support payments may be forfeited when he or she is “of employable age and . . . actively abandons the noncustodial parent by, without cause, refusing contact” … .  However, the child’s refusal of contact must be “‘totally unjustified'” …, and “where it is the parent who causes a breakdown in communication with his [or her] child, . . . the child will not be deemed to have abandoned the parent” … .  Matter of McCloskey v McCloskey, 516342, 3rd Dept 11-21-13

 

,

Criteria for Termination of Parental Rights Based Upon Abandonment Explained

The Third Department determined Family Court properly terminated respondent’s parental rights after a finding of abandonment:

Despite respondent’s intermittent homelessness, difficulties in arranging transportation, and lack of finances and accessible phone service, at some points during the six-month period she had housing and employment.  Thus, Family Court found that it would not have been impossible or unfeasible for respondent to contact petitioner or her child at some time during that period … .  …

Unlike in a permanent neglect proceeding, in an abandonment proceeding petitioner is not required to prove that it exercised diligent efforts to reunite the family or assist the parent in maintaining contact (see Social Services Law § 384-b [5] [b]…; compare Social Services Law § 384-b [7] [a], [f]).  The only statutorily authorized disposition after a finding of abandonment is an order committing the child’s custody to petitioner; a suspended judgment is not an option (see Social Services Law § 384-b [3] [g]; compare Family Ct Act § 631 [permitting suspended judgment as an option after a finding of permanent neglect]).  Thus, Family Court properly terminated respondent’s parental rights.  Matter of Erving BB …, 515880, 3rd Dept 11-21-13

 

Amendment Allowing the Consideration of Incarceration as a Reason for a Downward Support Modification Is Not Applied Retroactively

The Third Department affirmed Family Court’s finding that the amendment to Family Court Act section 451 (which allows a court to consider incarceration as a reason for a downward support modification) does not apply retroactively:

Before the 2010 amendment to Family Ct Act § 451, a parent’s loss of income resulting from incarceration generally was not considered a sufficient change in circumstances to warrant a reduction or suspension of child support … .  As part of legislation making many changes regarding child support (see Assembly Mem in Support, 2010 McKinney’s Session Laws of NY at 1747), Family Ct Act § 451 was amended in several respects including, as relevant here, to provide that “[i]ncarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of nonpayment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment” (Family Ct Act § 451 [2] [a]; see L 2010, ch 182, § 6).  However, the legislation further provided that, as to the section that included this amendment, it “shall apply to any action or proceeding to modify any order of child support entered on or after the effective date of this act”… .  Matter of Baltes v Smith, 514485, 3rd Dept 11-21-13

 

Grandmother Had Standing to Request Visitation/Visitation Properly Granted

The Third Department affirmed Family Court’s determination that grandmother had standing to petition for visitation with the child (Dakota) and that such visitation was in the best interests of the child. With respect to the standing criteria, the Third Department wrote:

Family Court correctly determined that petitioner established standing to petition for visitation with Dakota. When a child’s parents are living, a grandparent who seeks visitation with his or her grandchild must establish that “conditions exist which equity would see fit to intervene” (Domestic Relations Law § 72 [1]) in order to obtain standing … . The grandparent “must establish a sufficient existing relationship with [his or her] grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention” … .  In the latter situation, the grandparent’s “effort is measured against what [he or she] could reasonably have done under the circumstances”… . Matter of Rubel v Wilson, 511985, 3rd Dept 11-21-13

 

,

Resentencing to a Term of Imprisonment with a Maximum Greater than the Initial Sentence Violates Double Jeopardy Principles

The Third Department determined resentencing defendant to a term of imprisonment with a maximum greater than the initial sentence violated double jeopardy principles:

County Court violated double jeopardy principles when it imposed on defendant an aggregate sentence with a maximum of more than 10 years in prison.  “[T]he key to double jeopardy analysis of a sentence increase is whether the defendant had a legitimate expectation in the finality of his [or her] original sentence” … .  A court violates double jeopardy principles if it subjects a defendant to a greater maximum sentence upon resentencing after the original agreed-upon sentence has been determined to be illegal … .  At the time of resentencing, defendant had served two years of his 10-year prison sentence … .   As defendant had a reasonable expectation of finality in the maximum term of his prison sentence, namely that he would serve no more than 10 years in prison, imposing a maximum prison term greater than 10 years would run afoul of the double jeopardy clause … . Thus, we modify the resentence to an aggregate maximum of 10 years in prison.  People v DePerno, 105100, 3rd Dept 11-21-13

 

,

Revocation of Parole Based Upon Uncharged Assault Okay/Presence of Assault Victim at Revocation Hearing Excused

The Third Department determined petitioner’s parole was properly revoked even though the victim of the uncharged assault which triggered the revocation did not testify at the hearing:

Petitioner argues that he improperly was denied the opportunity to confront and cross-examine the victim.  While a “strong preference” for confrontation and cross-examination exists in parole revocation proceedings, the victim’s absence nevertheless may be excused “upon a specific finding of good cause” (…see Executive Law § 259-i [3] [f] [v]…).  Here, the victim refused to testify and could not be located despite extensive efforts by parole officials to do so.  Accordingly, the Administrative Law Judge properly excused her absence and considered other evidence regarding the assault … . Contrary to petitioner’s assertion, the fact the he was not indicted for any crimes stemming from the underlying assault did “not preclude a revocation of parole for the same conduct”… . Matter of Coston v NYS Division of Parole, 515013, 3rd Dept 11-21-13

 

,

Sentencing Court’s Reference to a Fine for Driving While Intoxicated as “Mandatory” Required Remittal for Resentencing

The Third Department noted that imposition of both a fine and imprisonment for Driving While Intoxicated is discretionary.  County Court’s indication that the fine was “mandatory” required remittal for resentencing.  People v Olmstead, 105214, 3rd Dept 11-21-13

 

,

Suppression Hearing Should Have Been Held to Determine Whether Property Seized by Use of Excessive Force (Taser)

After determining defendant’s request to represent himself at trial was properly granted, the Third Department noted that a suppression hearing should have been held to determine whether excessive force (taser) was used to retrieve a bag of cocaine from defendant’s mouth:

As for the cocaine recovered from defendant’s mouth after he was tased more than once, defendant raised a question as to whether that evidence was seized from him through the use of excessive force, which requires an analysis “under the Fourth Amendment’s ‘objective reasonableness’ standard” .. .  Defendant’s affirmation described his version of the arrest and search, and his motion papers asserted that use of a taser constituted excessive force under the circumstances.  The People failed to substantively respond to this argument.  As the motion papers raised a factual dispute concerning the use of a taser and whether it might be considered excessive force, giving rise to a potentially unreasonable search and seizure that may require suppression of the evidence, a hearing was required… . People v Atkinson, 105126, 3rd Dept 11-21-13

 

,

Defendant Entitled to New Counsel After Defense Attorney Took a Position Adverse to Defendant’s Pro Se Motion to Withdraw Guilty Plea

The Third Department determined defendant should have been provided with new counsel after defense counsel took a position adverse to defendant’s pro se motion to withdraw his guilty plea:

We agree with defendant’s contention that he should have been assigned new counsel to pursue his motion to withdraw the guilty plea because his counsel was essentially called as a witness against him.  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” … .  Doing so creates an actual conflict of interest that requires the trial court to assign a new attorney to represent the defendant on the motion … .

Here, defendant claimed that defense counsel coerced him into entering the guilty plea by failing to communicate with him, telling him that he did not want to represent him and that he had to take the offer “or that’s it.”  Defendant claimed that he was unprepared for any pretrial proceedings based on the lack of communication and felt that he had to take the plea to “get away” from counsel and avoid having to go to trial with him.  Defense counsel specifically refuted defendant’s assertions and, in response to County Court’s questioning, provided detailed information as to the discussions he had with defendant about the case and his options.  In response, defendant claimed that counsel’s statements were untruthful.  Given that defense counsel took a position adverse to defendant’s claim of coercion, County Court should have assigned new counsel to pursue defendant’s motion to withdraw his plea… . People v Zaorski, 103901, 3rd Dept 11-21-13

 

Stroke Not Work-Related

The Third Department affirmed the determination that claimant’s stroke was not work-related:

Inasmuch as it is undisputed that claimant’s stroke occurred while he was at work, he was entitled to the statutory presumption that his stroke arose out of and in the course of his employment (see Workers’ Compensation Law § 21… ). The employer, however, may rebut that presumption with substantial evidence to the contrary … . Here, the employer’s medical expert opined that claimant’s stroke was not related to his employment, but was directly related to certain preexisting conditions, including cerebral vascular disease, hypertension, diabetes, hypercholesterolemia and a prior transient ischemic attack, which combined to put claimant “at extreme risk for a stroke.”Claimant’s medical expert, although unaware of certain of claimant’s preexisting conditions that he testified may be predisposing factors for a stroke, concluded that claimant’s stroke was caused by job related exertion and fatigue. * * *Inasmuch as the Board is vested with the authority to credit the opinion of one medical expert over another …, its determination that there was no causal relationship between claimant’s stroke and his employment is supported by substantial evidence and will not be disturbed. Matter of Pengal v Chloe Foods Corporation…, 513003, 3rd Dept 11-14-13

 

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