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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.

 

IN A PARTIAL CONCURRENCE/PARTIAL DISSENT TWO JUSTICES WOULD HAVE REDUCED DEFENDANT’S SENTENCE TO TIME SERVED IN THE INTEREST OF JUSTICE BECAUSE OF THE EVIDENCE THAT DEFENDANT’S LIFE-EXPECTANCY AFTER REMOVAL OF A BRAIN TUMOR IS TWO TO THREE YEARS, THE DEFENDANT’S AGE AT THE TIME OF THE OFFENSE (18), AND THE DEFENDANT’S ABSENCE FROM THE ROOM WHERE THE VICTIM WAS STABBED (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court properly declined to adjudicate defendant a youthful offender and properly denied defendant’s motion to vacate his conviction on the ground he was suffering from the effects of an undiagnosed brain tumor at the time he pled guilty. The dissenters would have reduced defendant’s sentence because defendant was 18 at the time of the robbery/murder, the shotgun he possessed was unloaded, and he was not in the room when the victim was stabbed. The neurosurgeon testified that, although defendant’s tumor had been removed and he was in remission, the cancer could return and the five-year survival rate is 36%:

From the partial concurrence and partial dissent:

With what was known at the time of the plea and sentencing, we agree with the majority that Supreme Court acted within its discretion by imposing the negotiated sentence, without according defendant youthful offender status. On the record presented, we further agree that County Court did not abuse its discretion in denying defendant’s CPL 440.10 (1) (e) motion.

That said, under the unusual circumstances of this case, we would reduce the sentence in the interest of justice. Without minimizing defendant’s actual role in the criminal incident, two facts warrant particular attention. The shotgun that defendant utilized was unloaded and defendant was not in the victim’s room when the stabbing took place. Defendant, who was 18 years old at the time of the incident, underwent a significant medical procedure in January 2014 to remove a malignant tumor from his brain. Defendant’s neurosurgeon explained that the tumor was a “very aggressive form of brain cancer” and averred that the “[u]sual median survival with such a tumor is customarily 2.3 years,” with two- and five-year survival rates of 64% and 36% respectively. As of June 2020, the neurosurgeon indicated that defendant was in remission, but noted that the tumor could recur. He further observed that defendant “is fortunate that he has not succumbed to his tumor.” Given this prognosis, and considering that defendant has been incarcerated since 2013, we would exercise our interest of justice jurisdiction to modify the sentence from 12 years to time served … . People v McGill, 2022 NY Slip Op 04762, Third Dept 7-28-22

Practice Point: County Court properly declined to adjudicate defendant a youthful offender and properly denied his motion to vacate his robbery conviction. Two justices, however, argued the defendant’s brain tumor and 2-to-3-year life-expectancy warranted reducing defendant’s sentence to time served in the interest of justice.

 

HERE DEFENDANT SET A FIRE TO CONCEAL EVIDENCE AND WAS CONVICTED OF ARSON AND TAMPERING WITH EVIDENCE; BECAUSE BOTH CHARGES AROSE FROM A SINGLE ACT, THE SENTENCES MUST RUN CONCURRENTLY (THIRD DEPT).

The Third Department determined the sentences for arson and tampering with evidence arose from a single act and, therefore, the sentences must run concurrently. Defendant had participated in tying her disabled child to a bed. When defendant returned home, the child had died. To conceal the evidence, defendant participated in setting the home on fire. Under these circumstances, the arson and tampering with evidence charges arose from a single act:

… County Court should not have imposed consecutive terms of imprisonment upon defendant’s convictions of arson in the third degree and tampering with physical evidence. … “Sentences imposed for two or more offenses may not run consecutively where, among other things, a single act constitutes two offenses” … . Given that the fire admittedly was set to conceal evidence, the arson and tampering with physical evidence convictions necessarily arose from a single act. As a result, although the terms of imprisonment imposed upon such convictions properly ran consecutively to the sentence imposed upon defendant’s conviction of manslaughter in the first degree … , the sentences imposed upon the arson and tampering convictions must run concurrently with one another … , and defendant’s sentence is modified to that extent. People v Franklin, 2022 NY Slip Op 04677, Third Dept 7-21-22

Practice Point: The defendant set a fire to conceal evidence and was charged with and convicted of arson and tampering with evidence. Because both convictions arose from a single act, the sentences must run concurrently.

 

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