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DEFENDANT WAS ENTITLED TO HEARINGS ON HER SECOND MOTION TO VACATE HER CONVICTION ON THE GROUNDS OF NEWLY-DISCOVERED EVIDENCE, ACTUAL INNOCENCE AND INEFFECTIVE ASSISTANCE (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on her motion to vacate her convictions of predatory sexual assault of a child. Defendant presented affidavits from six witnesses stating the victim had recanted her trial testimony. Defendant’s motion warranted hearings on: (1) the newly discovered evidence (the recantation); (2) actual innocence; and (3) ineffective assistance (failure to present expert evidence to refute the People’s reliance of the Child Sexual Abuse Accommodation Syndrome [CSAAS]):

To prevail [the newly-discovered evidence] claim, a defendant bears the burden of establishing that the evidence meets “the following requirements: (1) it must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could have not been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be cumulative to the former issue; and[] (6) it must not be merely impeaching or contradicting the former evidence” … . * * *

… [W]e conclude that the six affidavits, together with the copies of text messages between victim B and some of the affiants,[FN1] were sufficient to warrant the holding of a hearing, such that County Court’s denial of defendant’s motion on the ground of newly discovered evidence in the absence of such a hearing was error … . * * *

… [D]efendant has established her entitlement to a hearing on her claim of actual innocence. “A prima facie showing of actual innocence is made out when there is a sufficient showing of possible merit to warrant a fuller exploration by the court” … .* * *

… [A] defendant may establish that he or she was denied meaningful representation in connection with the failure to call an expert witness by “demonstrat[ing] that such testimony was available, that it would have assisted the jury in its determination or that he [or she] was prejudiced by its absence” … . People v Werkheiser, 2022 NY Slip Op 05188, Third Dept 9-15-22

Practice Point: Here the defendant was entitled to hearings on her second motion to vacate her convictions for predatory assault of the child. She presented newly-discovered evidence (the victim’s recantation) requiring a hearing. Her claims of actual innocence and ineffective assistant (failure to refute the People’s reliance on CSAAS) also warranted hearings.

 

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LANDLORD DID NOT DEMONSTRATE TENANT ABANDONED THE LEASED PREMISES AND WAS NOT ENTITLED TO RENT FOR THE PERIODS BEFORE AND AFTER TENANT WAS LOCKED OUT; TENANT WAS ENTITLED TO RECOVER THE VALUE OF THE PERSONAL PROPERTY WHICH REMAINED IN THE LEASED PREMISES AFTER THE LOCKOUT (THIRD DEPT).

The Third Department, reversing the plaintiffs’ verdict in this landlord-tenant dispute, determined plaintiffs did not demonstrate defendants had abandoned the leased premises, a restaurant. Therefore plaintiffs were not entitled to recover rent after defendants were locked out by the plaintiffs, and plaintiffs did not submit sufficient proof of the alleged rent arrears (prior to the lockout). Defendants were entitled to recover on their unjust enrichment counterclaim for the value of the personal property which remained in the restaurant after the lockout:

As relating to commercial premises, “a landlord may avail himself or herself of a lease provision permitting reentry upon breach of conditions as long as he or she reenters peaceably” … . Certain evidence indicating abandonment may include failure to pay bills and rent, surrender of keys and physical relocation of business or personal items previously kept at the subject property … . Contrary conduct found not to demonstrate an intent to abandon a premises includes conduct such as leaving commercial equipment on the premises, paying the utilities, paying lump sum arrears, negotiating the sale of the business that included the leasehold and threatening to call the police on a landlord over a lockout … .

At trial, plaintiffs offered limited evidence of abandonment, namely, that plaintiff Martin P. Patton drove by the restaurant several times in May 2018 or June 2018 and observed it was closed and that defendants were behind on rent, although Patton was not exactly sure what days or what times he drove by or the total amount of rent arrears.  In contrast, Chen [the tenant] testified that, although business was declining, he continued to pay the rent and began to contact potential buyers to take over the restaurant and lease. According to Chen, the restaurant operated the day before the lockout and, when he returned the next day to find the locks changed, he called plaintiffs, who did not respond to him, and then he called the police, who generated an incident report. Defendants entered into evidence several photographs of the premises depicting equipment, furniture, powered-on televisions, liquor bottles on display at the bar and other chattel owned by defendants … . Patton v Modern Asian, Inc., 2022 NY Slip Op 05192, Third Dept 9-15-22

Practice Point: Here the landlord was unable to prove at trial that the tenant had abandoned the leased premises. The landlord was not entitled to rent for the period before and after the tenant was locked out. The tenant was entitled to recover the value of the personal property remaining on the leased premises after the lockout.

 

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THE FAMILY COURT JUDGE HAD REPRESENTED MOTHER IN A RELATED CUSTODY MATTER YEARS BEFORE FATHER BROUGHT A PETITION TO MODIFY CUSTODY; THE JUDGE WAS STATUTORILY DISQUALIFIED FROM THE CURRENT PROCEEDING (THIRD DEPT). ​

The Third Department determined the Family Court judge in this custody proceeding should have recused himself because, as an attorney, he had represented the mother years before where custody was adjudicated. The judge did not remember representing mother, but disqualification was required by the applicable statute:

“A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel” (Judiciary Law § 14; see Rules Governing Judicial Conduct [22 NYCRR] § 100.3 [E] [1] [b] [i]). “This prohibition is absolute and establishes a bright-line disqualification rule” … . Although neither the Judiciary Law nor the Rules Governing Judicial Conduct define “an action, claim, matter, motion or proceeding” (Judiciary Law § 14), Black’s Law Dictionary defines a “claim” as “[t]he assertion of an existing right . . . to an equitable remedy, even if contingent or provisional” … .

… [O]ur jurisprudence recognizes that, except in limited circumstances, a parent has an existing and ongoing right to custody of and/or visitation with his or her children … , and it is undisputed that the November 2012 default order and the order on appeal both deal with the custodial arrangement between the same two parents regarding the same three children. Under these circumstances, where the two proceedings involve the same claim of custody, guardianship, or visitation for the same children, we find that Family Court was statutorily disqualified from the instant proceedings … . Matter of John II. v Kristen JJ., 2022 NY Slip Op 05132, Third Dept 9-8-22

Practice Point: It is a bright-line statutory rule that a judge who, as an attorney, represented mother in a custody proceeding is statutorily disqualified from presiding over the same parties in a subsequent custody proceeding.

 

AN INMATE’S RELEASE ON PAROLE DOES NOT RENDER HIS APPEAL OF A DISCIPLINARY DETERMINATION MOOT (THIRD DEPT).

The Third Department determined that, although petitioner had been conditionally released to parole supervision, his challenge to a disciplinary determination had not been rendered moot:

… [D]uring the pendency of this appeal, petitioner was conditionally released to parole supervision. Accordingly, petitioner’s challenge to the Board’s prior decisions denying his release have been rendered moot … . However, petitioner’s challenge to the disciplinary determination has not been rendered moot by his conditional release … .. Accordingly, and as respondents concede that the claim was not time-barred based upon the application of the tolling provisions of certain executive orders that were issued by the Governor in response to the COVID-19 pandemic … , we remit the matter to Supreme Court for respondents to file an answer pursuant to CPLR 7804 (f) … . Matter of Ryhal v Annucci, 2022 NY Slip Op 05117, Third Dept 9-1-22

Practice Point: An inmate’s conditional release to parole does not render the inmate’s appeal of a disciplinary determination moot.

 

THE RECORD WAS SILENT ON WHETHER DEFENDANT SIGNED THE WAIVER OF INDICTMENT IN OPEN COURT; DEFENDANT’S GUILTY PLEA WAS VACATED AND THE SUPERIOR COURT INFORMATION WAS DISMISSED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea and dismissing the superior court information, determined the record was silent about whether defendant signed the waiver of indictment in open court:

A defendant “may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney” and “such waiver shall be evidenced by [a] written instrument signed by the defendant in open court in the presence of his or her counsel” (NY Const, art I, § 6; see CPL 195.20)…. The record contains a written waiver of indictment signed by defendant and witnessed by counsel on August 3, 2020, the date he appeared before County Court and entered his guilty plea. The minutes of that appearance reflect that defendant orally agreed to waive indictment and affirmed that his signature is on the written waiver, but the minutes are silent as to whether defendant signed the written waiver in open court. Moreover, there is no reference in the written waiver or in County Court’s order approving the waiver that 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 Rickman, 2022 NY Slip Op 05112, Third Dept 9-1-22

Practice Point: If the record does not reflect that the waiver of indictment was signed in open court, the defendant’s guilty plea must be vacated and the superior court information dismissed.

 

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ALTHOUGH NEW YORK DID NOT HAVE JURISDICTION OVER THE MICHIGAN CUSTODY ORDER; FAMILY COURT SHOULD HAVE EXERCISED TEMPORARY EMERGENCY JURISDICTION AND HELD A HEARING ON THE CHILD’S SAFETY; THE CHILD WAS IN NEW YORK DURING FATHER’S PARENTING TIME WHEN FATHER BROUGHT A NEGLECT/CUSTODY PETITION IN NEW YORK (THIRD DEPT).

The Third Department, reversing Family Court, determined, although Family Court properly dismissed father’s neglect/custody petition on the ground New York did not have jurisdiction over the Michigan custody order, Family Court should have ordered a hearing about the child’s safety pursuant to the court’s temporary emergency jurisdiction. The child was in New York during father’s parenting time at the time father filed the petition:

Under the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act], a New York court has jurisdiction to make an initial child custody determination under certain limited circumstances … . Here, the parties agreed that, as Michigan is the home state of the child, none of these statutory factors apply. Nevertheless, Domestic Relations Law § 76-c provides that “New York courts have ‘temporary emergency jurisdiction if the child is present in this state and it is necessary in an emergency to protect the child, a sibling or parent of the child'” … .

The AFC [attorney for the child] and the father contend that the allegations set forth in the petition were sufficient to warrant Family Court to conduct a hearing. We agree. Matter of Chester HH. v Angela GG., 2022 NY Slip Op 05002, Third Dept 8-18-22

Practice Point: Although New York did not have jurisdiction over a Michigan custody order and therefore properly dismissed father’s neglect/custody petition brought in New York when the child was in New York, Family Court should have exercised its temporary emergency jurisdiction and held a hearing on the child’s safety.

 

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THE CITY PROPERLY AMENDED ITS CHARTER DELETING THE PROVISIONS REQUIRING THE CITY TO ENFORCE PAYMENT OF DELINQUENT PROPERTY TAXES, IMPOSING THAT DUTY ON THE COUNTY (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the city properly amended its charter by deleting the provisions requiring the city to enforce payment of delinquent property taxes, thereby imposing that duty upon the county:

By adopting Local Law No. 2, the City amended its charter by deleting the provisions requiring the City to enforce the payment of delinquent taxes, leaving the County with that obligation under RPTL article 11. The City was statutorily authorized to do so pursuant to RPTL 1104 (2), which recognizes that a city charter “may from time to time be amended.” As a consequence of the amendment, the City is no longer a “tax district” for purposes of RPTL article 11 … and the County treasurer becomes the enforcing officer … . As such, the County treasurer is statutorily required to credit the City for unpaid delinquent taxes upon the return at the end of the fiscal year … . This outcome is neither an expansion nor impairment of the County’s powers but simply a consequence of the statutory structure outlined in RPTL articles 9 and 11. Matter of St. Lawrence County v City of Ogdensburg, 2022 NY Slip Op 04932, Third Dept 8-11-22

Practice Point: Here the city, pursuant to the Real Property Tax Law, properly amended its charter to remove the provisions requiring the city to enforce payment of delinquent property taxes, a duty which now falls upon the county.

 

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PETITIONER SEX OFFENDER’S APPEAL FROM THE DENIAL OF HIS HABEAS CORPUS PETITION WAS MOOT BECAUSE APPROPRIATE HOUSING HAD BEEN FOUND WHILE THE APPEAL WAS PENDING; THE THIRD DEPARTMENT CONSIDERED THE APPEAL UNDER THE EXCEPTION-TO-THE-MOOTNESS-DOCTRINE AND REITERATED THAT WHEN A LEVEL THREE SEX OFFENDER HAS COMPLETED HIS MAXIMUM PRISON TIME AND SUITABLE HOUSING IS NOT AVAILABLE, HE MUST BE TRANSFERRED TO A RESIDENTIAL TREATMENT FACILITY (RTF) (THIRD DEPT).

The Third Department, finding the appeal from the denial of petitioner’s habeas corpus petitioner moot, over a dissent, considered the appeal as an exception to the mootness doctrine. The Third Department held that when a level three sex offender has completed his maximum prison time, and Sexual Assault Reform Act (SARA) compliant housing cannot be found, the inmate must be placed in a residential treatment facility (RTF) to await housing. Here, while the appeal was pending, proper housing was found for petitioner. The dissent argued there was nothing novel about the case and invoking the exception-to-the-mootness-doctrine to hear the appeal was not necessary:

This Court has previously held, and we reiterate, that “when a risk level three sex offender reaches his or her maximum expiration date, [the Department of Corrections and Community Supervision] must release the individual to either an approved residence or to an [appropriate] RTF” … . People ex rel. Jones v Collado, 2022 NY Slip Op 04768, Second Dept 7-28-22

Practice Point: Here the appeal from the denial of petitioner-sex-offender’s habeas corpus petition was moot because appropriate post-release housing had been found. The Third Department considered the appeal pursuant to the exception-to-the-mootness-doctrine to reiterate that when a level three sex offender has completed his maximum prison time he must be placed in SARA compliant housing or, or if housing is not available, in a residential treatment facility (RTF).

 

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PETITIONER WAS PROVIDED WITH THE WRONG MISBEHAVIOR REPORT THEREBY PREVENTING HIM FROM FORMULATING A DEFENSE AND QUESTIONS FOR THE WITNESSES; THE MISBEHAVIOR DETERMINATION WAS ANNULLED AND A NEW HEARING ORDERED (THIRD DEPT). ​

The Third Department, annulling the misbehavior determination and ordering a new hearing, determined the petitioner was not provided with the relevant “unusual behavior” report:

We agree with petitioner that he was denied relevant documentary evidence. The record reflects that petitioner received an unusual incident report from his employee assistant and, upon petitioner’s objection at the hearing that he did not receive the whole unusual incident report, the Hearing Officer provided petitioner with the to/from reports relevant to the incident at issue. At the conclusion of the hearing, however, and in response to the Hearing Officer’s statement of the evidence, petitioner objected that the unusual incident report that he had been given related to a March 2020 incident and not the one related to the June 2020 incident at issue. Based upon the objection raised by petitioner, as well as both the March 2020 and June 2020 unusual incident reports being included with the in camera exhibits, it appears that petitioner was, in fact, given an irrelevant unusual incident report. Inasmuch as the June 2020 unusual incident report is “relevant to formulating petitioner’s defense and effectuating his questioning” of witnesses, the determination must be annulled … . Matter of Saunders v Annucci .2022 NY Slip Op 04772, Third Dept 7-28-22

Practice Point: The failure to provide the petitioner with the correct misbehavior report prevented the petitioner from formulating a defense and relevant questions for the witnesses. The misbehavior determination was annulled and a new hearing ordered.

 

30-YEAR-OLD ALLEGATIONS OF FATHER’S SEXUAL ABUSE OF HIS 10-YEAR-OLD NIECE DID NOT JUSTIFY THE LIMITED PARENTING TIME AWARDED FATHER; FATHER HAD DEMONSTRATED HIS ABILITY TO PROVIDE FOR THE CHILDREN’S WELL-BEING AND THE CASEWORKERS HAD NO CONCERNS ABOUT FATHER (THIRD DEPT). ​

The Third Department, reversing (modifying) Family Court, determined limiting father’s parenting time to six hours of supervised visits biweekly was not supported by the record. Presumably Family Court’s ruling was based upon sexual abuse allegations made by father’s 10-year-old niece 30 years ago:

… [T]he record contains evidence of the father’s demonstrated ability to provide for the children’s well-being. As established by the evidence, after the children exhibited concerning behavior, the father took overt and appropriate steps to address such behavior by, among other things, engaging in preventative services with the Ulster County Department of Social Services, enrolling the children in counseling and establishing boundaries with the children’s online activity. Child protective caseworkers testified on the father’s behalf and stated that they did not have any concerns regarding the father.

Considering all of the foregoing, we find that the record lacks a sound and substantial basis to support Family Court’s determination to provide the father with only six hours of biweekly, supervised parenting time … . Matter of Benjamin V. v Shantika W., 2022 NY Slip Op 04774, Third Dept 7-28-22

Practice Point: Allegations of sexual abuse by father’s 10-yearr-old niece made 30 years ago did not justify the limited supervised parenting time awarded father. The record demonstrated father’s ability to provide for the children’s well-being and the caseworkers testified they had no concerns about father.

 

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