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THE SUPERIOR COURT INFORMATION (SCI) DID NOT AFFIRMATIVELY PLEAD THE EXCEPTION IN THE CRIMINAL MISCHIEF STATUTE; THEREFORE THE CRIMINAL MISCHIEF COUNT WAS JURISDICTIONALLY DEFECTIVE (THIRD DEPT).

The Third Department, reversing defendant’s criminal mischief conviction, determined the underlying statute includes an exception which must be affirmatively pleaded. The exception was not affirmatively pleaded in the Superior Court Information (SCI):

“In order to determine whether a statute defining a crime contains an exception that must be affirmatively pleaded as an element in the accusatory instrument or a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial, a court must look to the language of the statute itself” … . To that end, “legislative intent to create an exception that must be affirmatively pleaded has generally been found when the language of exclusion is contained entirely within a Penal Law provision” … . Penal Law § 145.05 (2) provides that “[a] person is guilty of criminal mischief in the third degree when, with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he or she has such right, he or she . . . damages property of another person in an amount exceeding [$250]” … . Inasmuch as the qualifying language is contained within the statute itself, we agree that such language constitutes an exception. Given that count 1 of the 2016 SCI did not allege that defendant had neither a right to cause the property damage at issue nor a reasonable ground to believe that she had such right, that count — charging defendant with criminal mischief in the third degree — is jurisdictionally defective … . People v West, 2023 NY Slip Op 01921, Third Dept 4-13-23

Practice Point: If a criminal statute includes language which is deemed an “exception,” the exception must be affirmatively pled. The failure to affirmatively plead an exception renders the count jurisdictionally defective.

 

PETITIONER POLICE OFFICER WAS AWARE OF THE DEFECT IN THE FLOOR WHICH CAUSED HIS CHAIR TO START TO TIP OVER BACKWARDS WHEN THE WHEELS CAUGHT IN THE DEFECT; THEREFORE THE INCIDENT WAS NOT UNEXPECTED AND PETITIONER WAS NOT ENTITLED TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, over a dissent, determined petitioner police officer was not entitled to accidental disability benefits for injuries incurred at his desk when he prevented himself from falling over backwards in his chair. When he attempted to roll the chair backwards it caught in a rut and petitioner was injured when he grabbed at a desk to keep from tipping over backwards:

Petitioner acknowledged that he was aware that the flooring at the front desk was in poor condition and that, both on previous occasions and prior to the incident that day, he had observed that there were two ruts in the flooring right behind the desk. Petitioner also testified that, in his estimation, the ruts were “three inches across, maybe a little more.” His testimony also demonstrates that he was aware that the chair he was utilizing that day had wheels and that, when sitting at the desk, those wheels would be in the “general area” of the holes. Given this testimony and the photographs of the floor that were admitted, respondent’s finding that petitioner could have reasonably anticipated the hazard — i.e., that the small wheels catching a depression in the floor would cause the chair to tip — was reasonable and supported by substantial evidence, despite other reasonable interpretations. Therefore, the finding that the precipitating event was not unexpected and did not constitute an accident within the meaning of the Retirement and Social Security Law will not be disturbed … . Matter of Bodenmiller v DiNapoli, 2023 NY Slip Op 01930, Third Dept 4-13-23

Practice Point: To constitute an accident under the Retirement and Social Security Law, the incident must be “unexpected.” Here petitioner was aware of the floor-defect which cause his chair to start tipping over backwards when the wheels caught in the defect. Therefore the incident was not “unexpected” within the meaning of the applicable law.

 

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BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT AN ENUMERATED OFFENSE UNDER SORA, THEREFORE DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER; THE WAIVER OF APPEAL WAS INVALID (THIRD DEPT).

The Third Department determined defendant was not required to register as a sex offender because the offense to which he pled guilty, burglary as a sexually motivated felony, is not one of offenses to which SORA applies. In addition, the Third Department held defendant’s waiver of appeal was invalid:

… [W]e agree with the analysis of our colleagues in the First and Second Departments concluding that registerable offenses subject to SORA are, by application of the clear statutory text, limited to those crimes expressly identified as “[s]ex offense[s]” pursuant to Correction Law § 168-a (2) … . As burglary in the third degree as a sexually motivated felony is not among the offenses enumerated therein, we agree that defendant was improperly required to register as a sex offender pursuant to SORA … . …

During the plea colloquy, County Court did not explain that certain appellate rights would survive the waiver of appeal and instead improperly described the rights to be waived as encompassing “any argument” that defendant might take to a higher court … . The written waiver, in turn, states that “[i]t is [defendant’s] understanding and intention that [his] plea agreement and sentence will be a complete and final disposition of this case.” Although the written appeal waiver also includes qualifying language limiting its application “to all legal issues that can be waived under the law[,]” and the court confirmed that defendant had discussed the waiver with counsel … , we find that the “totality of the circumstances” presented here fails to confirm that defendant understood that some appellate review would survive the waiver … . People v Winter, 2023 NY Slip Op 01820, Third Dept 4-6-23

Practice Point: A defendant may not be required to register as a sex offender if convicted of a crime not listed in the Correction Law. Burglary as a sexually motivated felony is not listed.

Practice Point: The failure to inform the defendant that, despite the waiver of appeal, certain issues remain appealable, renders the waiver of appeal invalid.

 

THE RECORD DID NOT DEMONSTRATE THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT, A JURISDICTIONAL DEFECT (THIRD DEPT).

The Third Department, dismissing the superior court information, noted the record did not indicate the waiver of indictment was signed in open court, which is a jurisdictional defect:

A defendant “may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney” provided that “such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel” … . Although the record reflects that defendant orally agreed to waive indictment in open court and contains a written waiver of indictment bearing the date of that appearance, which defendant and defense counsel acknowledged signing, the minutes do not demonstrate that defendant signed the waiver in open court, as constitutionally mandated. “Compliance with this unequivocal dictate is indispensable to a knowing and intelligent waiver and the failure to adhere to this strict procedure is a jurisdictional defect which survives a guilty plea and appeal waiver and need not be preserved for review by a motion to withdraw the plea” … . Moreover, neither the written waiver of indictment, to which the District Attorney executed consent … , nor County Court’s undated order approving the waiver, indicates that the waiver was signed in open court … . In light of this jurisdictional defect, defendant’s guilty plea must be vacated and the superior court information must be dismissed …. People v Camlin, 2023 NY Slip Op 01821, Third Dept 4-6-23

Practice Point: If the record does indicate the waiver of indictment was signed in open court, the superior court information will be dismissed.

 

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THE THIRD DEPARTMENT, REVERSING THE NEGLECT FINDINGS AGAINST MOTHER, DETERMINED THE SYSTEM FAILED MOTHER WHO WAS DEALING WITH EXTREMELY DIFFICULT CIRCUMSTANCES AND WHO WAS UNSUCCESSFULLY SEEKING HELP FROM PETITIONER FROM THE OUTSET; EVEN THE APPEALS PROCESS FAILED HER BECAUSE IT TOOK TOO LONG (THIRD DEPT). ​

The Third Department, reversing Family Court’s neglect findings, noted that mother was dealing with extremely difficult circumstances, including an abusive and violent father, and, from the outset, was desperately seeking assistance from the petitioner (the county department of social services) which was not provided. The Third Department noted that the appeal should have been brought much sooner, and the failure to do so may have resulted in the unjustified separation of mother from her children for years. In the words of the court: “it … appears that we have failed to address the pressing needs of this family, and the children, at each step:”

An adjudication of neglect based upon emotional impairment must include a determination “that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care” … .  As the oldest child’s emotional difficulties are, at least to some great extent, properly attributed to the trauma he experienced [father beating mother], rather than any failing of the mother, his condition does not support the neglect finding. Family Court further concluded that the other two children were neglected because the oldest child’s behaviors presented a risk to his siblings’ physical well-being. However, at no point did petitioner proffer evidence that either of the younger siblings had been injured by the oldest child, nor is there any evidence that such physical harm was imminent; at most, this conclusion is premised upon possible future harm, which is insufficient to support an adjudication of neglect … .

… [W]hile leaving children unattended, even for a brief period, can constitute a failure to exercise a minimum degree of parental care under certain circumstances … , it does not amount to neglect in all cases, even in certain circumstances where the unattended child is accidentally injured … . Here, considering the surrounding circumstances, we do not find that the evidence revealed such a failure. Nor will we fault the mother for her inability to control all three young children while attending to their various needs — as was the case in the incidents where the youngest child was left in a foam infant seat on a table and where the two older children ran outside of the shelter — or while taking care of necessary chores — as was the case in the incident where the youngest child fell out of a baby carriage. In our view, the mother’s conduct during these alleged incidents of neglect did not fall below a minimum degree of parental [*4]care; nor were the children physically impaired, and it was not demonstrated that any sort of impairment was imminent … . Matter of Alachi I. (Shelby J.), 2023 NY Slip Op 01822, Third Dept 4-6-23

Practice Point: Here mother was dealing with an abusive, violent father and an older child who was difficult to control. She unsuccessfully sought assistance from the social services department from the outset. The Third Department determined the neglect findings based upon the behavior of the older child were baseless and the instances where children were briefly unattended did not amount to neglect. Even the appeals process failed mother because it took years, which necessarily affected her ability to stay connected with her children.

 

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THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER MADE A LEFT TURN INTO TO THE PATH OF DEFENDANT’S ONCOMING CAR WITHOUT CHECKING FOR ONCOMING TRAFFIC; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

​The Third Department, reversing Supreme Court, determined defendant driver’s motion for summary judgment in this traffic accident case should have been granted. The driver of the car in which plaintiff was a passenger attempted a left turn in front of defendant’s vehicle without checking for oncoming traffic:

On this record, defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence that Ryan failed to yield the right-of-way and turned directly into the path of his vehicle … . Thus, the burden shifted to plaintiff to demonstrate a triable issue of fact on the issue of defendant’s comparative fault. Plaintiff failed to do so. Ohl v Smith, 2023 NY Slip Op 01823, Third Dept 4-6-23

Practice Point: The driver of the car in which plaintiff was a passenger made a left turn into the path of defendant’s car without checking for oncoming traffic. There was no evidence of comparative fault on defendant’s part. Defendant’s motion for summary judgment should have been granted.

 

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ALTHOUGH PLAINTIFF SIGNED A RELEASE AND WAIVER OF LIABILITY BEFORE ATTENDING THE DEMOLITION DERBY, PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT UNREASONABLY INCREASED THE RISK BY FAILING TO INSTALL SUFFICIENT BARRIERS TO PROTECT SPECTATORS FROM THE VEHICLES IN THE DERBY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff raised a question of fact whether defendant unreasonably increased the risk of injury at a demolition derby by failing to install sufficient barriers to protect the public from injury. Here one of the cars in the derby pushed through the concrete barriers and injured the plaintiff:

The issue … distills to whether plaintiff’s submissions “demonstrate[d] facts from which it could be concluded that defendant unreasonably enhanced the danger or created conditions which were unique or above those inherent in the activity” … . To that end, in his opposition to the motion, plaintiff submitted an affidavit averring that he was not warned that there was a risk that participating vehicles could break through the barricade and strike spectators. Plaintiff also proffered the expert affidavit of Russell E. Darnell, a licensed engineering contractor and certified National Institute of Automotive Service Excellence master technician who holds several racing licenses. … Darnell opined, among other things, that these barriers “were not up to the standard of the industry and are not generally accepted within the demolition derby community which requires sturdy, immovable barricades in a protective ring.” Waite v County of Clinton, N.Y., 2023 NY Slip Op 01831, Third Dept 4-6-23

Practice Point: The assumption-of-the-risk doctrine will not apply if the defendant unreasonably increased the risks associated with the activity. Here plaintiff raised a question fact whether the risk to spectators at a demolition derby was increased by the failure to install sufficient barriers between the spectators and the derby vehicles.

 

CONSECUTIVE SENTENCES SHOULD NOT HAVE BEEN IMPOSED RE: CERTAIN WEAPONS-POSSESSION COUNTS (THIRD DEPT).

​The Third Department concluded that the sentences on certain weapons-possession counts should not have been imposed consecutively:

The conviction on count 2 stemmed from defendant’s possession and intent to use an operable, loaded .357 caliber revolver in violation of Penal Law § 265.03 (1) (b) and his conviction on count 3 was based upon his mere unlawful possession of that same firearm in violation of Penal Law § 265.03 (3), regardless of any intent to use the weapon. Insofar as defendant’s possession of the weapon was a material element of both weapon possession counts, was part of the same act resulting in the murder, and there was no evidence that defendant possessed the weapon with purposes unrelated to his intent to shoot the victim, the sentence imposed on count 3 is modified to run concurrently with the sentence imposed on count 2 … .

County Court also erred in running the sentences on counts 1 and 3 consecutively to one another. “[W]here a defendant is charged with criminal possession of a weapon pursuant to Penal Law § 265.03 (3), as well as a crime involving use of that weapon . . . consecutive sentencing” is allowed “so long as the defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon” … . Here, however, the People’s theory of the case, which the jury ultimately believed, was that defendant had already formed the specific intent to kill the victim when he procured the revolver … . People v Graham, 2023 NY Slip Op 01819, Third Dept 4-6-23

Practice Point: Here consecutive sentences should not have been imposed re: certain weapons-possession counts.

 

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THE BANK DID NOT DEMONSTATE IT HAD STANDING TO FORECLOSE BECAUSE IT DID NOT ADEQUATELY EXPLAIN HOW IT CAME INTO POSSESSION OF THE NOTE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff did not demonstrate it had standing to bring the foreclosure action and its summary judgment motion should not have been granted:

A plaintiff demonstrates standing in a mortgage foreclosure action by establishing that “it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” … . “With respect to the note, either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation” … . …

Other than alleging that he reviewed the electronic records that were kept in the normal course of business, [the affiant] failed to provide details with regard to how plaintiff came into possession of the note … . Wilmington Sav. Fund Socy., FSB v LaFrate, 2023 NY Slip Op 01824, Third Dept 4-6-23

Practice Point: When the defendant raises lack-of-standing as an affirmative defense in a foreclosure action, the bank must demonstrate it came into possession of the note before commencing the action. Here the proof of standing was conclusory and lacking in detail. The bank’s motion for summary judgment should not have been granted.

 

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THE ORIGINAL CUSTODY ORDER WAS ISSUED IN NEW JERSEY, WHERE FATHER RESIDES; THE NEW YORK CUSTODY ORDER MUST BE REVERSED BECAUSE FAMILY COURT DID NOT COMMUNICATE WITH THE NEW JERSEY COURT AND NO FINDING WAS MADE ON WHETHER NEW JERSEY HAD RELINQUISHED EXCLUSIVE JURISDICTION OR WHETHER NEW YORK WAS A MORE CONVENIENT FORUM; MATTER REMITTED (THIRD DEPT).

​The Third Department, reversing Family Court, determined Family Court lacked jurisdiction to issue the custody order on appeal because the court failed to communicate with the court in New Jersey, where father resides, which issued the original custody order:

… [P]rior to modifying a custody determination from another state, a court of this state must have jurisdiction to make the initial determination pursuant to Domestic Relations Law § 76, and “[t]he court of the other state [must] determine[ that] it no longer has exclusive, continuing jurisdiction under [Domestic Relations Law § 76-a] or that a court of this state would be a more convenient forum under [Domestic Relations Law § 76-f]” … . Inasmuch as the child has resided in this state since 2018, Family Court had jurisdiction to make an initial determination of custody (see Domestic Relations Law §§ 76 [1] [a]; 75-a [7]). However, the record is devoid of any indication that the New Jersey court relinquished its jurisdiction or that it determined that this state was a more convenient forum, and Family Court failed to communicate with the New Jersey court to make such inquiry. … Family Court lacked jurisdiction to issue the order on appeal … , and we must vacate said order and remit this matter to Family Court to conduct the required inquiry…. . Matter of Alda X. v Aurel X., 2023 NY Slip Op 01826, Third Dept 4-6-23

Practice Point: Here the original custody order was issued in New Jersey, where father resides. Family Court in Albany did not communicate with the New Jersey court before issuing an order modifying custody. Family Court did not have jurisdiction and the New York order was reversed.

 

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