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CRIMINAL LAW (JURY INSTRUCTIONS, AUTOMOBILE PRESUMPTION, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, AUTOMOBILE PRESUMPTION, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))/AUTOMOBILE PRESUMPTION (CRIMINAL LAW, POSSESSION OF A WEAPON, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))/WEAPON, POSSESSION OF (AUTOMOBILE PRESUMPTION, JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))/AUTOMOBILE PRESUMPTION (POSSESSION OF A WEAPON,  JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT))

 

CRIMINAL LAW.

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JURY SHOULD NOT HAVE BEEN INSTRUCTED ON THE AUTOMOBILE PRESUMPTION OF POSSESSION OF A WEAPON, THE WEAPON WAS SEEN IN THE POSSESSION OF A PASSENGER IN THE CAR (SECOND DEPT).

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The Second Department, reversing defendant's possession of a weapon convictions, determined the jury should not have been instructed on the automobile presumption of possession of a weapon. The weapon was seen in the possession of a passenger:

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Both police officers who pursued the vehicle being driven by the defendant testified that the gun was seen solely in the physical possession of the other occupant of the vehicle who threw it out the rear passenger side window. This clear-cut evidence that the gun was observed exclusively in the possession of an identified occupant of the vehicle renders the automobile presumption inapplicable and it was error for the court to have charged that presumption ... . The error in giving the charge was not harmless since it is impossible to determine whether the guilty verdict was based on this improper jury charge rather than the proper charges pertaining to the People's alternative theories of constructive possession and acting in concert ... . Accordingly, we must vacate the defendant's convictions of criminal possession of a weapon in the second degree and the sentences imposed thereon and order a new trial on those counts of the indictment. People v Drayton-Archer, 2018 NY Slip Op 01934, Second Dept 3-21-18

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CRIMINAL LAW (JURORS, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/JURORS (CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/MISTRIAL (CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/DISCHARGE (JURORS) (CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))/ONLINE RESEARCH (JURORS, CRIMINAL LAW, TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT))

 

CRIMINAL LAW.

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TRIAL COURT PROPERLY REFUSED TO DISCHARGE A JUROR AND DECLARE A MISTRIAL AFTER JUROR CONDUCTED ONLINE RESEARCH ABOUT FALSE CONFESSIONS AND SHARED THE INFORMATION WITH OTHER JURORS (FIRST DEPT).

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The First Department determined the trial court properly refused to discharge a juror and declare a mistrial after the juror conducted online research about false confessions and shared the information with other jurors:

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After a jury note revealed that one juror had conducted online research on false confessions and shared it with the rest of the jury, the court providently exercised its discretion in denying defendant's request to discharge the offending juror and concomitantly declare a mistrial. Defendant did not preserve his contention that the court should have conducted one or more individual inquiries ... , and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. The court took adequate curative measures by thoroughly admonishing the jury to disregard the information obtained by a juror, not to conduct any outside research, and to decide the case solely based on the evidence presented at trial ... . The jury presumably followed these instructions ... . The court also granted defense counsel's request for individual polling of the jurors as to whether they had reached the verdict based only on the evidence and the law as instructed by the court, and not based on any outside influence, to which all jurors answered in the affirmative. Under the circumstances, the juror's misconduct in researching and telling the other jurors about false confessions did not prejudice defendant. People v Jimenez, 2018 NY Slip Op 02018, First Dept 3-22-18

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CRIMINAL LAW (ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))/IDENTIFICATION (CRIMINAL LAW, ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))/710.30 NOTICE (ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))/PRECLUSION (CRIMINAL LAW, IDENTIFICATION, ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))

 

CRIMINAL LAW.

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ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT).

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The Fourth Department, sending the case back to Supreme Court, found that a hearing was necessary to determine whether the police officers engaged in identification procedures at the police station and, if so, whether the identifications were confirmatory. The People did not notify the defendant of any identification procedures in their CPL 710.30 notice:

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... [T]he People provided a blank CPL 710.30 notice to defendant and, in response to that part of his omnibus motion seeking preclusion, asserted that "[t]here were no identification procedures which would require a CPL 710.30 notice." The record before us establishes ... that the officer and his partner may have engaged in showup identification procedures undertaken "at the deliberate direction of the State" that required notice pursuant to CPL 710.30 ... . The evidence at the suppression hearing established that defendant fled from the front passenger seat of the parked vehicle and was unsuccessfully pursued by the officer, and that the officer knew defendant was apprehended because the officer saw defendant after he was later taken into custody by a third officer. The record further indicates, and the People do not dispute, that, after defendant was arrested and brought to the police station by the third officer at the officer's direction, the officer identified defendant as the front seat passenger who fled from the parked vehicle. ...

 

Although the People contend that any police station identifications were merely confirmatory, and it appears from the record that the officer and his partner may have been familiar with defendant prior to the subject incident, we are precluded from affirming on that ground inasmuch as the court did not rule on that issue ... . People v Davis, 2018 NY Slip Op 02051, Fourth Dept 3-23-18

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CRIMINAL LAW (DWI, SENTENCING, DEFENDANT, WHO HAD SERVEd THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))/SENTENCING (DWI, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))/DRIVING WHILE INTOXICATED (SENTENCING, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))/PROBATION, VIOLATION OF (DWI, SENTENCING, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))

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CRIMINAL LAW.

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DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT).

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The Fourth Department, reversing County Court, determined defendant could not be sentenced to more prison time for a violation of probation in this driving while intoxicated case. Defendant had served the full four years of his 1 1/3 to 4 year sentence when he violated probation by driving while intoxicated, unlicensed operation, refusal of a breath test and operating without an ignition interlock device:

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[In People v Coon, 156 AD3d 105, the] Third Department held that, "where [the defendant] has already served and completed the one-year definite sentence imposed for the DWI conviction, County Court was not authorized to impose an additional term of imprisonment upon his violation of the conditional discharge terms" ... . In reaching that conclusion, the Third Department noted that "[t]he statutory framework governing sentencing does not cover these factual circumstances," and there were "no corresponding statutes or amendments to already existing statutes that delineated the types of sanctions that courts could impose in a case such as this one" ... .

 

While here defendant was sentenced to an indeterminate term of imprisonment followed by probation instead of a definite jail term followed by a conditional discharge, we conclude that those distinctions are immaterial. Defendant served the maximum term of imprisonment imposed, i.e., four years on his sentence of 1⅓ to 4 years, and we conclude that he cannot be subjected to additional prison time under the guise of a sentence based on a probation or conditional discharge violation when, in fact, he was resentenced for the initial offense. People v Zirbel, 2018 NY Slip Op 02064, Fourth Dept 3-23-18

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CRIMINAL LAW (PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))/INDICTMENTS (PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))

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CRIMINAL LAW, APPEALS.

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PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT).

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The Fourth Department determined the plea to attempted sex trafficking charged in an amended indictment count must be vacated because the count which was purportedly amended had been previously dismissed. The court further held that the waiver of appeal was invalid:

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... [W]e conclude ... that the court erred in eliciting defendant's plea of guilty to attempted sex trafficking under the purported amended count 3 of the second indictment because of the previous dismissal of the underlying count... . Inasmuch as " [a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution' " ... , and the court lacked authority to amend a previously dismissed count and elicit defendant's plea thereto, the judgment of conviction ... must be reversed and the plea vacated ... . 

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We agree with defendant ... that his purported waiver of the right to appeal is not valid inasmuch as "the perfunctory inquiry made by [County] Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ... . Although "[a] detailed written waiver can supplement a court's on-the-record explanation of what a waiver of the right to appeal entails, . . . a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal"... . Here, although defendant signed such a written waiver, "the record establishes that County Court did not sufficiently explain the significance of the appeal waiver or ascertain defendant's understanding thereof" ... . We thus conclude that, "despite defendant's execution of a written waiver of the right to appeal, he did not knowingly, intelligently or voluntarily waive his right to appeal as the record fails to demonstrate a full appreciation of the consequences of such waiver" ... . People v Wilson, 2018 NY Slip Op 02060, Fourth Deptp 3-23-18

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CRIMINAL LAW (PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/GUILTY PLEA  (PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/INTEREST OF JUSTICE (CRIMINAL LAW, APPEALS, PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))/COLLOQUY (CRIMINAL LAW, (PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT))

 

CRIMINAL LAW, APPEALS.

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PLEA COLLOQUY INSUFFICIENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

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The Third Department, reversing defendant's conviction by guilty plea, determined the plea was not knowing, voluntary and intelligent:

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Although the claim has not been preserved for our review given the absence of an appropriate postallocution motion by defendant, we nevertheless exercise our interest of justice jurisdiction and take corrective action under the particular circumstances presented... . "While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights" ... . Here, the record reveals the absence of a meaningful plea colloquy and that defendant entered his guilty plea without County Court providing any instruction on its implications or the rights that he was waiving by entering it ... . People v Schmitz, 2018 NY Slip Op 01960, Third Dept 3-22-18

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CRIMINAL LAW (SENTENCING, MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))/SENTENCING (MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))/APPEALS (CRIMINAL LAW, SENTENCING,  MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))/PROBATION (CRIMINAL LAW, SENTENCING,  MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))

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CRIMINAL LAW, APPEALS.

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MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT).

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The Fourth Department noted that the matter must be sent back for resentencing, despite the failure to raise the issue on appeal, because the length of probation was not specified:

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Although not raised by the parties, we note that the judgment must be modified by vacating the sentence and the matter must be remitted to County Court for resentencing because the court did not specify the length of the term of probation ... . People v Petrangelo, 2018 NY Slip Op 02074, Fourth Dept 3-23-18

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CRIMINAL LAW (DEFENDANT'S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT'S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/PLEA COLLOQUY (CRIMINAL LAW, DEFENDANT'S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/COLLOQUY (CRIMINAL LAW, DEFENDANT'S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/ALLOCUTION (CRIMINAL LAW, DEFENDANT'S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))

 

CRIMINAL LAW, APPEALS.

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DEFENDANT'S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT).

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The Fourth Department, reversing defendant's conviction by guilty plea, determined defendant's statements denying he sold cocaine and describing the proceedings as corrupt mandated further inquiry by the court. The failure to preserve the error by a postallocution motion did not, under the facts, prevent the court from reaching the issue on appeal:

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During the plea colloquy, defendant admitted to possessing cocaine with the intent to sell, but he denied that he sold the cocaine. After County Court stated that it would not accept his plea, it again asked defendant whether he sold the cocaine, and defendant answered "yes." Defendant informed that court, however, that he was pleading guilty only because he could "no longer go forward to proceed to trial with the level of corruption and maliciousness being used to prosecute" him. The court nevertheless accepted his plea.

 

Although defendant never moved to withdraw his guilty plea, this case falls within the exception to the preservation requirement that was carved out by the Court of Appeals in People v Lopez (71 NY2d 662, 666 [1988]), which permits appellate review of the sufficiency of a plea allocution despite the absence of such a motion, where the recitation of facts elicited during the plea allocution "clearly casts significant doubt upon the defendant's guilt or otherwise calls into question the voluntariness of the plea." Under such circumstances, if the court fails to conduct "further inquiry to ensure that [the] defendant understands the nature of the charge and that the plea is intelligently entered . . . , the defendant may challenge the sufficiency of the allocution on direct appeal, notwithstanding that a formal postallocution motion was not made" ... . People v Daniels, 2018 NY Slip Op 02094, Fourth Dept 3-23-18

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CRIMINAL LAW (ATTORNEYS, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE'S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE'S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, BUCCAL SWAB, DNA, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE'S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/BUCCAL SWAB (CRIMINAL LAW, DNA, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE'S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/DNA (CRIMINAL LAW, BUCCAL SWAB, ATTORNEYS, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE'S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))

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CRIMINAL LAW, ATTORNEYS, EVIDENCE.

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DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE'S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT).

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The Fourth Department determined Supreme Court should not have required defendant to proceed pro se on the People's motion to compel him to submit to a buccal swab for DNA testing:

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We ... agree with defendant that the court erred in requiring him to proceed pro se on the People's motion to compel him to submit to a buccal swab for DNA testing ... . Contrary to the People's contention, the court's error cannot be deemed harmless, inasmuch as the evidence apart from the DNA evidence is not overwhelming, and there is a reasonable possibility that the error contributed to the conviction ... . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for further proceedings on the People's motion following the assignment of counsel to represent defendant thereon. People v Pressley, 2018 NY Slip Op 02114, Fourth Dept 3-23-18

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CRIMINAL LAW (HEARING REQUIRED ON DEFENDANT'S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, HEARING REQUIRED ON DEFENDANT'S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (HEARING REQUIRED ON DEFENDANT'S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/BRADY MATERIAL (CRIMINAL LAW, HEARING REQUIRED ON DEFENDANT'S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/FALSE TESTIMONY (CRIMINAL LAW, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT'S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/POLICE OFFICERS (CRIMINAL LAW, FALSE TESTIMONY, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT'S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/PROSECUTORS (FALSE TESTIMONY, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT'S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))

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CRIMINAL LAW, EVIDENCE.

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HEARING REQUIRED ON DEFENDANT'S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT).

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The Fourth Department, reversing Supreme Court, determined a hearing should have been held on defendant's motion to vacate his conviction, even though the issues were raised or could have been raised in a prior motion to vacate. The defendant presented evidence that defendant's cell phone was pinged, not defendant's girlfriend's cell phone. Therefore defendant had standing to challenge the pinging of the cell phone. The defendant's motion raised the issue whether a police officer lied when he testified the girlfriend's cell phone was pinged, and whether evidence that the girlfriend's phone was broken at the relevant time (presented to the grand jury) was withheld from the defendant:

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... [D]efendant submitted police reports wherein the officer who had testified at the suppression hearing (testifying officer) stated that law enforcement officers were "pinging" a phone that belonged to defendant. Defendant further submitted affidavits from the minor [his girlfriend] and her grandmother, who had sought the aid of law enforcement, indicating that the minor's phone had broken days before the police action and that they had informed the testifying officer and prosecutor of that fact either the day on which the police pinged the cell phone or, at the very least, at some date before the suppression hearing. Indeed, the minor averred that she had testified before the grand jury that her phone had broken and that defendant's cell phone was the only phone that she and defendant had used during the relevant time period. Defendant contends that the minor's grand jury testimony constituted exculpatory evidence that was not disclosed to the defense despite a specific request therefor.

 

It is well settled that prosecutors have the duty "not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness"... . Defendant has submitted credible documentary evidence establishing that the testifying officer's testimony at the suppression hearing was false and that the prosecutor knew or should have known that the testimony was false ... . Moreover, defendant has submitted credible documentary evidence establishing that the prosecutor failed to disclose material, exculpatory evidence ... . People v Reed, 2018 NY Slip Op 02068, Fourth Dept 3-23-18

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CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE'S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE'S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))/BRADY MATERIAL  (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE'S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))/GUILTY PLEA, MOTION TO WITHDRAW (BRADY VIOLATION DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE'S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))

 

CRIMINAL LAW, EVIDENCE.

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DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE'S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (OVERRULING PRECEDENT) (FOURTH DEPT).

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The Fourth Department determined defendant was entitled to a hearing on his motion to withdraw his guilty plea based upon the People's failure to disclose the autopsy and toxicology reports relating to the two persons on a motorcycle who died after colliding with defendant's truck. The reports indicated high blood alcohol levels. The Fourth Department noted that the reports constituted Brady material and held that a defendant does not waive a Brady violation by pleading guilty. Prior Fourth Department decisions to the contrary are no longer to be followed:

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... [W]e reject the People's contention that defendant forfeited his right to raise the alleged Brady violation by pleading guilty ... . Brady is premised upon considerations of fairness and due process ... , and we conclude that it would undermine the prosecutor's Brady obligations if a defendant is deemed to have forfeited his or her right to raise an alleged Brady violation by entering a plea without the knowledge that the People possessed exculpatory evidence... . To the extent that our prior decisions hold that a defendant, by pleading guilty, forfeits the right to raise an alleged Brady violation (see e.g. People v Brockway, 148 AD3d 1815, 1816 [4th Dept 2017]; People v Chant, 140 AD3d 1645, 1648 [4th Dept 2016], lv denied 28 NY3d 970 [2016]; People v Chinn, 104 AD3d 1167, 1168 [4th Dept 2013], lv denied 21 NY3d 1014 [2013]), they are no longer to be followed. ...

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We reject the People's contention that the reports do not contain exculpatory material and that they were thus under no obligation to disclose them. Rather, we agree with defendant that evidence of the motorcycle operator's intoxication is relevant with respect to the cause of the fatal accident and defendant's culpability therefor and, here, the toxicology report states that two blood samples obtained from the motorcycle operator indicated blood alcohol concentrations of .081 and .098. Moreover, the exculpatory value of that evidence is enhanced by defendant's initial account of the accident to State Police officers at the scene, wherein defendant asserted that the accident occurred when the motorcycle was passing another vehicle and suddenly appeared "right in front of him." People v Wilson, 2018 NY Slip Op 02106, Fourth Dept 3-23-18

 

 

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CRIMINAL LAW (ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT'S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, UNCHARGED CRIMES, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT'S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/UNCHARGED CRIMES (ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT'S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/PROPENSITY EVIDENCE (CRIMINAL LAW, UNCHARGED CRIMES, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT'S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT'S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/INEFFECTIVE ASSISTANCE OF COUNSEL (CRIMINAL LAW, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT'S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))

 

CRIMINAL LAW, EVIDENCE, ATTORNEYS.

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ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT'S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT).

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The Fourth Department, over a strong two-justice dissent, affirmed defendant's murder conviction despite the introduction of highly prejudicial evidence of unrelated crimes and defense counsel's failure to object to that inadmissible propensity evidence. The majority decided not to address the inadmissible propensity evidence because defense counsel did not object to it (error not preserved for appeal). The majority further determined that allowing the jury to hear the inadmissible propensity evidence was a valid defense strategy (painting the admission to the charged crime and other crimes as merely tough talk):

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We conclude, contrary to the view of our dissenting colleagues, that defendant received effective assistance of counsel. It is well settled that "a reviewing court must avoid confusing true ineffectiveness with mere losing tactics' " ... . It "is not for [the] court to second-guess whether a course chosen by defendant's counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation" ... . Crucially, we note that the evidence in question is the very same evidence upon which defendant relied to establish his defense at trial. The defense theory of the case, as articulated in defense counsel's summation, was that defendant did not kill the victim; he was merely "talking tough" because he was afraid of being in jail. Indeed, as defendant told the investigators, he was just "trying to sound bigger than he really was." Defense counsel urged the jury to find defendant's statements unworthy of belief because defendant was frightened and "puffing." In an effort to deflect the jury's attention from defendant's admissions to the charged crime, defense counsel made a deliberate choice, as a matter of trial strategy, to leave those admissions in the context of the gratuitous boasting in which they arose. Although the evidence in question would have been excludable upon a motion by defendant, we conclude that the evidence was consistent with the defense strategy. Moreover, the redaction of such material from the letter and audio recording would have highlighted defendant's confession to the [charged] homicide. In other words, extracting defendant's admissions from the extraneous talk that was consistent with the puffing defense would have undercut the defense theory and focused the jury's attention on defendant's admissions of guilt. People v Anderson, 2018 NY Slip Op 02105, Fourth Dept 3-23-18

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ENVIRONMENTAL LAW (APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT))/ZONING (APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT))/NATURAL RESOURCES SPECIAL PERMIT  (APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT))/VARIANCES APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT))/RETAINING WALLS (APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT))/WATERFRONT PROPERTY (APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT))

 

ENVIRONMENTAL LAW, ZONING.

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APPLICATIONS FOR A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE FOR THE CONSTRUCTION OF RETAINING WALLS IN AN AREA OF PROTECTED BEACH VEGETATION PROPERLY DENIED, DIFFERENCE BETWEEN A NATURAL RESOURCES SPECIAL PERMIT AND A VARIANCE EXPLAINED (SECOND DEPT).

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The Second Department determined the zoning board of appeals (ZBA) properly denied petitioner's application for a natural resources special permit for the construction of retaining walls. The walls had been construction without applying for the permit. The petitioner's application for a variance was properly denied because the criteria for a variance are more stringent than the criteria for a natural resources special permit. The retaining wall was built in an area of protected beach vegetation:

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"Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right" ... . Thus, the burden of proof on the applicant seeking a special use permit "is lighter than that on an applicant seeking a variance, the former only being required to show compliance with any legislatively imposed conditions on an otherwise permitted use, while the latter must show an undue hardship in complying with the ordinance" ... . "A denial of a special use permit must be supported by evidence in the record and may not be based solely upon community objection" ... . "However, where evidence supporting the denial exists, deference must be given to the discretion of the zoning board, and a court may not substitute its own judgment for that of the zoning board, even if a contrary determination is supported by the record" ... . Matter of 278, LLC v Zoning Bd. of Appeals of the Town of E. Hampton, 2018 NY Slip Op 01913, Second Dept 3-21-18

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FAMILY LAW (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/ADOPTION (SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/SEPARATION AGREEMENT (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/DOMESTIC RELATIONS LAW (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))

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FAMILY LAW.

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SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT).

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The Second Department, reversing Supreme Court, determined the separation agreement met the statutory requirement of the adoption statute. The petitioner therefore had standing to adopt without her spouse and her petition should not have been dismissed:

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Domestic Relations Law § 110 dictates who has standing to adopt, and should be strictly construed in harmony with the legislative purpose that adoption is a means of securing the best possible home for a child ... . As relevant here, an "adult married person who is living separate and apart from his or her spouse . . . pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded . . . may adopt another person" without his or her spouse ... .

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A separation agreement may contain substantive provisions settling marital issues such as equitable distribution and maintenance ... . However, "[t]he agreement is simply intended as evidence of the authenticity and reality of the separation'" ... . Thus, for example, where the substantive provisions of a separation agreement have been invalidated as unconscionable, the agreement "generally . . . may still be accepted for the sole purpose of evidencing the parties' agreement to live separate and apart, thus satisfying the statutory requirement in respect to a separation agreement" in providing grounds for a conversion divorce under Domestic Relations Law § 170(6) ... .

 

Here, the separation agreement evidences the parties' agreement to live separate and apart. The agreement is in writing, subscribed by the parties thereto, and acknowledged in the form required to entitle a deed to be recorded ... . Therefore, it satisfies the statutory requirement of the adoption statute with respect to a separation agreement ... . Matter of Jason (Sonia O.), 2018 NY Slip Op 01922, Second Dept 3-21-18

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FAMILY LAW (GRANDPARENTS, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/VISITATION (FAMILY LAW, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/GRANDPARENTS (FAMILY LAW, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/DOMESTIC RELATIONS LAW (VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/STANDING (FAMILY LAW, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))

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FAMILY LAW.

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GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT).

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The Second Department determined the paternal grandparents had automatic standing to seek visitation upon father's death. The court further determined visitation was in the best interests of the children, despite the animosity of mother (not caused by the grandparents):

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When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry ... . First, it must find that the grandparent has standing, based on the death of a parent or equitable circumstances ... . "Where either parent of the grandchild has died, the grandparents have an absolute right to standing" ... . Once the court concludes that the grandparent has established standing to petition for visitation, the court must then determine if visitation is in the best interests of the child ... . ...

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Animosity alone is insufficient to deny visitation ... .Here, the estrangement between the paternal grandparents and the children resulted from the animosity between the mother and the paternal grandparents, and the record supported the forensic evaluator's determination that the paternal grandparents' conduct was not the cause of the animosity ... . Matter of Mastronardi v Milano-Granito, 2018 NY Slip Op 01923, Second Dept 3-21-18

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FAMILY LAW (VISITATION, FATHER'S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT))/VISITATION (FAMILY LAW, MODIFICATION OF MUTUALLY AGREED VISITATION, FATHER'S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT))

 

FAMILY LAW.

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FATHER'S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT).

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The Fourth Department determined father's motion to modify visitation should not have been denied without a hearing. The existing order allowed father visitation under mutually agreed circumstance. Father alleged mother had prohibited visitation for three years:

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Although "[a] court cannot delegate its authority to determine visitation to either a parent or a child" ... , it may order visitation as the parties may mutually agree so long as such an arrangement is not untenable under the circumstances ... . Where, as here, a prior order provides for visitation as the parties may mutually agree, a party who is unable to obtain visitation pursuant to that order "may file a petition seeking to enforce or modify the order" ... .

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We agree with the father that the court erred in dismissing the modification petition without a hearing inasmuch as the father made "a sufficient evidentiary showing of a change in circumstances to require a hearing"... . Contrary to the mother's contention, upon giving the petition a liberal construction, accepting the facts alleged therein as true, and according the father the benefit of every favorable inference... , we conclude that the father adequately alleged a change of circumstances insofar as the visitation arrangement based upon mutual agreement was no longer tenable given that the mother purportedly denied the father any contact with the child ... . In addition, we note that, although the father is now incarcerated, there is a rebuttable presumption that visitation is in the child's best interests ... . Matter of Kelley v Fifield, 2018 NY Slip Op 02110, Fourth Dept 3-23-18

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FAMILY LAW (ATTORNEYS, COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY'S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT))/ATTORNEYS (FAMILY LAW, ASSIGNED COUNSEL,  COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY'S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT))/ASSIGNED COUNSEL (FAMILY LAW, COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY'S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT))

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FAMILY LAW, ATTORNEYS.

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COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY'S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT).

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The Fourth Department, in a full-fledged opinion by Justice Peradotto, reversing Supreme Court, determined the court did not have the power to impute income to the defendant for the purpose of determining defendant's eligibility for assigned counsel in a Family Court Act custody/visitation matter. Defendant was a PhD student living with his parents and had very little income. After a hearing, Supreme Court imputed $50,000 in annual income to the defendant, making him ineligible for assigned counsel:

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... [A] person facing potential jail time for willfully violating court orders has a significant stake in the proceedings, and the legislature has guaranteed an equal playing field between the parties by providing such a person with assigned counsel if he or she is financially unable to obtain private counsel... . Moreover, to the extent that the court is concerned that defendant could bring serial modification petitions with impunity, thereby causing plaintiff to repeatedly expend her personal funds, we note that sanctions may be imposed for frivolous conduct ...  and, in an appropriate case, a court may preclude a party from filing new petitions without permission of the court where the record establishes that the party has abused the judicial process by engaging in meritless, frivolous or vexatious litigation ... . We thus conclude that the court erred in determining that it was authorized to impute income to defendant in determining his eligibility for assigned counsel and, based upon the documentation provided by defendant indisputably establishing that he "is financially unable to obtain" counsel ... . Carney v Carney, 2018 NY Slip Op 02034, Fourth Dept 3-23-18

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FAMILY LAW (SUPPORT, ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/SUPPORT (FAMILY LAW, ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/CIVIL PROCEDURE (FAMILY LAW, PREEMPTION, ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/PREEMPTION (FAMILY LAW, SUPPORT, ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/UNIFORM INTERSTATE FAMILY SUPPORT ACT (ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT ( ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/

 

FAMILY LAW, CIVIL PROCEDURE.

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ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT).

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The Fourth Department determined that, although father could not seek modification of an out of state support order under the Uniform Interstate Family Support Act (UIFSA), he could seek modification under the Full Faith and Credit for Child Support Orders Act (FFCCSOA), which was deemed to preempt the UIFSA:

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In order to modify an out-of-state child support order under the Uniform Interstate Family Support Act ([UIFSA] Family Ct Act art 5-B), the order must be registered in New York and, in relevant part, the following conditions must be present: "(i) neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state; (ii) a petitioner who is a nonresident of this state seeks modification; and (iii) the respondent is subject to the personal jurisdiction of the tribunal of this state" ... . Although the New Jersey child support order was registered in New York, the father is the petitioner and he is a resident of New York. Therefore, under the UIFSA, the father could not properly bring the petition for modification of the New Jersey child support order in New York. The father could, however, properly bring the petition for modification in New York under the Full Faith and Credit for Child Support Orders Act ... . Under the FFCCSOA, a New York court may modify an out-of-state child support order if "the court has jurisdiction to make such a child support order pursuant to [28 USC § 1738B] subsection (i)" and, in relevant part, "the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child's State or the residence of any individual contestant" ... . Here, neither the parties nor the child continued to reside in New Jersey, and New Jersey therefore ceased to have continuing, exclusive jurisdiction ... .

 

Although the UIFSA and the FFCCSOA "have complementary policy goals and should be read in tandem"... , the UIFSA and the FFCCSOA conflict when applied to these facts, and we conclude that the FFCCSOA preempts the UIFSA here. The FFCCSOA "is so comprehensive in scope that it is inferable that Congress intended to fully occupy the field of its subject matter" ... . Matter of Reynolds v Evans, 2018 NY Slip Op 02077, Fourth Dept 3-23-18

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FORECLOSURE (ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT'S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT))/INTEREST (FORECLOSURE,  ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT'S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT))/CIVIL PROCEDURE (AMEND ANSWER, FORECLOSURE, ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT'S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT))

 

FORECLOSURE, CIVIL PROCEDURE.

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ALTHOUGH THE FIRST FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, DEFENDANT WAS NOT RESPONSIBLE FOR THE ACCRUAL OF INTEREST DURING THE FOUR YEARS UNTIL THE FORECLOSURE ACTION WAS REFILED, DEFENDANT'S MOTION TO AMEND THE ANSWER TO ADD THE DEFENSE OF LACK OF STANDING SHOULD HAVE BEEN GRANTED, NO PREJUDICE (SECOND DEPT).

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The Second Department, reversing Supreme Court, determined defendant's (Jackson's) motion to toll the accrual of interest during the four years between the filing of the first foreclosure action, which was erroneously dismissed, and the second foreclosure action should have been granted. The court further found that defendant's motion to amend the answer to assert the lack of standing defense should have been granted:

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Although the initial October 2010 RJI may have been rejected erroneously, the plaintiff fails to explain the ensuing four-year delay between the initial October 2010 filing and the subsequent filing on November 6, 2014. Under the unusual circumstances of this case, since Jackson was prejudiced by this unexplained delay, during which time interest had been accruing, the interest on the loan should have been tolled from December 22, 2010 (that is, 60 days after the alleged initial October 2010 RJI was filed, the time period during which a settlement conference would be scheduled), through the date that the plaintiff filed the subsequent RJI on November 6, 2014 ... . ...

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"Leave to amend a pleading shall be freely given,' provided that the amendment is not palpably insufficient as a matter of law, does not prejudice or surprise the opposing party, and is not patently devoid of merit" ... . "Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine" ... . Here, Jackson sought to amend his answer after he was served with the November 2014 RJI to which the plaintiff had attached a copy of the subject note, executed by him in favor of Countrywide Bank, FSB, and which had not been endorsed to the plaintiff. Since Jackson's proposed amendment to include the defense of lack of standing did not result in any prejudice to the plaintiff and was not palpably insufficient or patently devoid of merit, the Supreme Court improvidently exercised its discretion in denying that branch of Jackson's motion which was for leave to amend his answer to assert the defense of lack of standing ... . BAC Home Loans Servicing, L.P. v Jackson, 2018 NY Slip Op 01896, Second Dept 3-21-18

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FORECLOSURE (SETTLEMENT CONFERENCE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, SETTLEMENT CONFERENCE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))/SETTLEMENT CONFERENCE (FORECLOSURE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))/CPLR 3408 (f) (FORECLOSURE, SETTLEMENT CONFERENCE, DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT))

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FORECLOSURE, CIVIL PROCEDURE.

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DEFENDANT RAISED A QUESTION OF FACT WHETHER THE BANK MADE A REASONABLE EFFORT TO REACH A RESOLUTION AT THE SETTLEMENT CONFERENCE (SECOND DEPT).

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The Second Department, reversing Supreme Court, determined defendant (Nimkoff) was entitled to a hearing on whether plaintiff bank (Hudson City Savings Bank) made a good faith effort to resolve the foreclosure action pursuant to CPLR 3408 (f):

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... Nimkoff submitted ... his own affidavit in which he averred that the plaintiff refused to negotiate with him for the stated reason that another entity, Hudson City Savings Bank (hereinafter Hudson City), was the holder of the mortgage and did not allow loan modifications. In opposition, the plaintiff contended that its counsel properly appeared at the two foreclosure settlement conferences and advised the court that Hudson City does not participate in the home affordable modification program. The plaintiff submitted ... the master mortgage loan purchase and servicing agreement (hereinafter PSA) between the plaintiff and Hudson City to establish that the plaintiff was the servicer of the subject mortgage and Hudson City was the purchaser. However, the PSA also authorized the plaintiff to modify the terms of the subject mortgage loan with Hudson City's consent. In any event, the statute requires the parties to negotiate in good faith to reach a mutually agreeable resolution. There is no evidence in the record that the plaintiff attempted to gain Hudson City's consent to offer a loan modification or offered Nimkoff another nonretention solution, such as a deed in lieu of foreclosure. In fact, there is no evidence in the record that any effort was made to reach a resolution at the two foreclosure settlement conferences. Citimortgage, Inc. v Nimkoff, 2018 NY Slip Op 01900, Second Dept 3-21-18

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MUNICIPAL LAW (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/CIVIL RIGHTS LAW (42 USC 1983)  (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/NEGLIGENCE (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/INTENTIONAL TORTS (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/EMPLOYMENT LAW (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/NEGLIGENT SUPERVISION AND RETENTION COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT))

 

MUNICIPAL LAW, CIVIL RIGHTS LAW (42 USC 1983), NEGLIGENCE, INTENTIONAL TORTS, EMPLOYMENT LAW.

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COMPLAINT STATED CAUSES OF ACTION AGAINST A POLICE OFFICER AND-OR THE CITY FOR CIVIL RIGHTS VIOLATIONS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, AND NEGLIGENT SUPERVISION AND RETENTION, SUPREME COURT REVERSED (FIRST DEPT).

 

The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined the complaint stated causes of action against the city and a city police officer (DeBellis) in connection with, inter alia, warrantless home visits by the officer purportedly concerning the well-being of plaintiff's child and allegedly false complaints by the officer to the Administration for Children's Services (ACS):

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... [A]lthough not expressly pleaded, the factual allegations in the complaint fit within a cause of action against DeBellis for intentional infliction of emotional distress based on her alleged malicious or reckless false reporting to ACS and malicious campaign of harassment. ...

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...[W]e cannot say, as a matter of law, that DeBellis's actions did not rise to the requisite level of outrageous conduct. The facts alleged by plaintiff describe both (1) a deliberate and malicious campaign of harassment and intimidation and (2) an abuse of power. ... 

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Plaintiff has also stated a claim against defendants under 42 USC § 1983 for deprivation of plaintiff's constitutional rights, specifically, her right under the Fourth Amendment to be free from warrantless and unlawful entries into the home ... . ...

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Despite ... allegations of repeated notice to DeBellis's superiors of her actions, there is no indication ... any action was taken to restrain her. Accordingly ... plaintiff has stated a claim for holding the City liable under § 1983 on account of its gross negligence or deliberate indifference to DeBellis's unconstitutional actions ... . ...

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...[Plaintiff] states a claim against the City for negligent supervision and retention of DeBellis ... . Under this theory, an employer may be liable for the acts of an employee outside the scope of his or her employment ... . Contrary to the City's argument, the facts permit an inference that DeBellis was acting outside of the scope of her employment, and, as plaintiff argues, "had some personal axe to grind." Scollar v City of New York, 2018 NY Slip Op 02032, First Dept 3-22-18

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MUNICIPAL LAW (EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY'S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT))/CONTRACT LAW (RATIFICATION, MUNICIPAL LAW, EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY'S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT))/RATIFICATION (CONTRACT LAW, MUNICIPAL LAW, EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY'S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT))/LANDLORD-TENANT (CONTRACT LAW, MUNICIPAL LAW, EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY'S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT))

 

MUNICIPAL LAW, CONTRACT LAW, LANDLORD-TENANT.

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EXTENSION OF A LEASE WITH A MUNICIPALITY WAS RATIFIED BY THE MUNICIPALITY'S ACCEPTANCE OF RENT PAYMENTS (SECOND DEPT).

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The Second Department, reversing Supreme Court, determined a cell phone tower lease with a municipality did not expire. An extension of the lease was ratified by the municipality when it continued to accept lease payments after the expiration of the first five-year term:

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... [I]n seeking a declaration that the lease expired ... , the plaintiffs alleged that the Village's Board of Trustees ... only authorized the lease for a term of five years. Indeed, the resolution provided that "the term of the leases [sic] shall not exceed a period of five (5) years from the date upon which it is executed." The lease, however, provided that the initial term of the lease "will be five (5) years from the Commencement Date'" ... , "and shall automatically renew for up to ten (10) additional terms of five (5) years each."

 

Verizon and AG separately moved for summary judgment, arguing that the lease did not expire ... , because the Village ratified the lease by accepting rental payments, issuing building permits, and granting variance applications in connection with the construction of the cell tower. ...

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"A contract that is not approved by a relevant municipal or governmental body, as required by law, rule, or regulation, may be ratified by the municipality or government body by subsequent conduct, such as by making payments pursuant to the contract" ... . Giunta v AG Towers, Inc., 2018 NY Slip Op 01905, Second Dept 3-21-18

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MUNICIPAL LAW (VILLAGE EMPLOYEE'S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER'S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER'S LICENSE (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, VILLAGE EMPLOYEE'S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER'S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER'S LICENSE (FOURTH DEPT))/CIVIL SERVICE LAW (VILLAGE EMPLOYEE'S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER'S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER'S LICENSE (FOURTH DEPT))

 

MUNICIPAL LAW, EMPLOYMENT LAW, CIVIL SERVICE LAW.

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VILLAGE EMPLOYEE'S TERMINATION BECAUSE HE DID NOT HAVE A COMMERCIAL DRIVER'S LICENSE WAS ARBITRARY AND CAPRICIOUS, JOB DESCRIPTION DID NOT EXPLICITLY REQUIRE A COMMERCIAL DRIVER'S LICENSE (FOURTH DEPT).

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The Fourth Department determined that the termination of a village employee (Jakubowicz) was arbitrary and capricious. The employee was fired because he did not have a commercial driver's license. However, the Mechanic II position does not explicitly require a commercial driver's license:

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The Village, as limited by its brief, contends that a commercial driver's license is a minimum qualification for Jakubowicz's position as a Mechanic II in the Village and that his failure to maintain such minimum qualification required the termination of his employment. We reject that contention. The Mechanic II position in the Village requires, inter alia, "[p]ossession, at time of appointment and during service in this classification, of a valid NYS Motor Vehicle Operator's license appropriate for the type of vehicles which the employee may from time to time operate." " [B]oth due process and fundamental fairness require that a qualification or requirement of employment be expressly stated in order for an employer to bypass the protections afforded by the Civil Service Law or a collective bargaining agreement and summarily terminate an employee' " ... . Here, the requirement of a commercial driver's license is not "expressly stated" ... . Furthermore, while "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it" ... , the Village here offered Jakubowicz a hearing "to afford [him] the opportunity to present information to the Village why [he] should not be administratively terminated from employment." There is no dispute that a hearing was never held. Matter of Jakubowicz v Village of Fredonia, 2018 NY Slip Op 02059, Fourth Dept 3-23-18

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