CRIMINAL LAW

Insufficient Evidence to Warrant Jury Charge on Intoxication Defense

The Court of Appeals affirmed defendant’s rape conviction finding that defendant presented insufficient evidence to warrant a jury charge on the intoxication defense:

Although intoxication is not a defense to a criminal offense, a defendant may offer evidence of intoxication whenever relevant to negate an element of the charged crime (see Penal Law § 15.25).  An intoxication charge should be issued when, viewing the evidence in a light most favorable to defendant …, "there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to [an] element . . . on that basis" … .  In order to meet this "relatively low threshold," defendant must present evidence "tending to corroborate his claim of intoxication, such as the number of drinks, the period of time between consumption and the event at issue, whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, and the specific impact of the alcohol upon his behavior or mental state" … . 

Here, the evidence was insufficient to allow a reasonable juror to harbor a doubt concerning the element of intent on the basis of intoxication.  Defendant's bare assertions concerning his intoxication were, by themselves, insufficient … .  Nor did his statement to police and the victim's testimony that she smelled alcohol on his breath corroborate defendant's claim.  While he may, indeed, have consumed alcohol prior to the events leading up to the crimes alleged, the evidence established that defendant's conduct was purposeful.  He cut a hole in a screen to gain entry, instructed the victim to be quiet, threw a blanket over her head, and stole her cell phone so she could not call the police.  Given this evidence, the court correctly ruled an intoxication charge was not warranted. People v Beaty, 148, Ct App 10-17-13

Emergency Doctrine Applied—Statements Made to Police and Overheard by Police Not Suppressible

In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed the denial of motions to suppress certain statements made by the defendant to the police and to a friend in the presence of the police under the emergency doctrine. [The concurring judge felt the emergency was over when defendant spoke to his friend and his prior request for counsel rendered those statements suppressible. The majority held that the conversation with the friend was not police interrogation because there was no police involvement and the conversation was not a ploy by the police to elicit information from the defendant.] When the police encountered the defendant his clothes had wet blood on them and blood was found in defendant’s vehicle. The emergency doctrine applied because the police were justified in questioning the defendant to determine if someone was injured and needed help:

As a general rule, a person who is in custody cannot be questioned without first receiving Miranda warnings or after the right to counsel attaches … .  There are exceptions to these principles, one of which is referred to as the "emergency doctrine" … . It recognizes that the Constitution "is not a barrier to a police officer seeking to help someone in immediate danger" …, thereby excusing or justifying otherwise impermissible police conduct that is an objectively reasonable response to an apparently exigent situation … .  We have explained that the exception is comprised of three elements: (1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property and this belief must be grounded in empirical facts; (2) the search must not be primarily motivated by an intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched … .  People v Doll, 141, Ct App 10-17-13

Out of State Conviction of then 15-Year-Old Could Not Serve as Basis for Second Felony Offender Sentence

The Court of Appeals determined that the defendant’s Pennsylvania conviction for third degree murder (when the defendant was 15) could not serve as the basis for a second felony offender sentence.  In so finding, the court noted that the error did not need to be preserved for the Court of Appeals to reach it:

As an initial matter, we conclude that this case falls within the narrow exception to our preservation rule permitting appellate review when a sentence's illegality is readily discernible from the trial record … . * * *

Penal Law § 30.00 (1) specifies that a person must be at least 16 years old to be criminally responsible for his conduct.  Penal Law § 30.00 (2) lists crimes that are exceptions to this age requirement, but second-degree manslaughter is not among them.  So assuming as we must for purposes of this appeal that third-degree murder in Pennsylvania is equivalent to second degree manslaughter in New York, defendant's Pennsylvania conviction was not a predicate felony conviction within the meaning of Penal Law § 70.06 (b) (i) because he could not even have been prosecuted for second-degree manslaughter in New York at the age of 15.  People v Santiago, 159, Ct App 10-15-13

Failure to Allow Hearsay Admissible as Statement Against Penal Interest Required Reversal

In a weapon-possession case, the Court of Appeals, over a dissent, reversed the appellate division and held the defendant should have been allowed to call an attorney to testify that a (separately tried and acquitted) co-defendant told the attorney the weapon at issue was hers.  The court found the attorney’s testimony was admissible under the statement-against-penal-interest exception to the hearsay rule:

The declaration against penal interest exception to the hearsay rule "recognizes the general reliability of such statements . . . because normally people do not make statements damaging to themselves unless they are true" … .  The exception has four components:    (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability … .  The fourth factor is the "most important" aspect of the exception … .  Assuming that the other elements are satisfied, such statements can be admissible if there is "a reasonable possibility that the statement might be true" … .

We conclude that the courts below erred by focusing on the inconsistency between the … codefendant's trial testimony and her pretrial statement to [the] lawyer. Knowledge that a declaration is against penal interests must be assessed "at the time" it was made …, and later recantations generally affect the weight and credibility that a fact-finder should ascribe to the statement.  Applying this legal standard, there was adequate evidence to establish admissibility under the particular facts of this case:  the handgun was found in a handbag located in the rear of the automobile directly adjacent to the … codefendant; she was the only woman in the vehicle; and the circumstances under which the utterance was declared make it clear that the statement was against her interests.  Contrary to the dissent's contention, there was also sufficient proof that the woman was not available to testify.  Finally, the exclusion of the statement cannot be deemed harmless because the People's case was not overwhelming.  Defendants are therefore entitled to a new trial.  People v Shabazz, 150, Ct App 10-15-13

SORA Determination Made at Sentencing (Which Included Incarceration) Invalid

The Second Department reversed Supreme Court’s SORA determination because the court failed to follow the procedure required for an incarcerated defendant.  The SORA determination was made at sentencing:

In this case, the Supreme Court sentenced the defendant to a nine-month term of incarceration without any probation supervision. The court conducted the risk assessment hearing and made its risk level determination immediately after sentencing, using a risk level assessment instrument prepared by the District Attorney's office. This violated SORA and deprived the defendant of his right to due process … . Pursuant to the SORA statutory scheme, a risk level determination should not have been made until 30 days before his release from custody (see Correction Law § 168-n[2]… ). The court's determination should have been preceded by the Board's risk level recommendation, and the defendant should have been notified of the opportunity to submit to the Board any information that he believed was relevant for its review (see Correction Law § 168-n[2], [3]). Under the circumstances presented here, the fact that the defendant did not explicitly object to this procedure does not indicate that he knowingly and intelligently waived these statutory and due process rights or failed to preserve the issue for appellate review … . Moreover, while Correction Law § 168-l(8) provides that, notwithstanding the Board's failure to act, a court may still make a determination regarding a sex offender's risk level, "this must be read as applying only where the Board had the opportunity to make a recommendation in the first instance" … . Here, the Board had no such opportunity, since the risk level determination was erroneously made immediately after the defendant was sentenced. As a result, "the Supreme Court was without a statutorily-authorized basis for making a risk level determination"… .  People v Game, 2013 NY Slip Op 06670, 2nd Dept 10-16-13

In SORA Proceeding, Offender Did Not Provide Sufficient Proof of Exceptional Response to Treatment

The Second Department noted that while an offender’s response to treatment can be a mitigating factor supporting a downward departure in a SORA proceeding, there was insufficient evidence of an exceptional response to treatment in this case:

A downward departure from a sex offender's presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the Sex Offender Registration Act (hereinafter SORA) Guidelines … . A defendant seeking a downward departure has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" … . 

Here, the defendant identified an appropriate mitigating factor that could provide a basis for a discretionary downward departure (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]… .). In this regard, the SORA Guidelines recognize that "[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]…). However, the defendant failed to establish, by a preponderance of the evidence, the facts in support of its existence… . People v Guzman, 2013 NY Slip Op 06671, 2nd Dept 10-16-13

Robbery Conviction Against Weight of Evidence---Hand In Pocket Not Evidence of Threat to Use Force

In reversing the defendant’s robbery conviction as against the weight of the evidence, the Second Department determined the fact that defendant’s hand was in his pocket did not support the “threat to use immediate physical force” element of the offense:

This Court has held that where an unarmed person "positions his hand in his pocket in a manner that is intended to convey to his victim the impression that he is holding a firearm," that qualifies as displaying what appears to be a gun … . Since the defendant here admitted to knowingly entering the warehouse with the intent to commit a crime therein, the acquittal of burglary in the second degree could only be based upon the People's failure to prove that the defendant displayed what appeared to be a firearm, or, in other words, upon the People's failure to prove that the defendant positioned his hand in his pocket in a manner intended to convey to the complainants the impression that he was holding a gun.

The trial court's factual finding that the defendant did not display what appeared to be a firearm is supported by the record. The trial court, however, failed to give that finding the proper weight with respect to the crime of robbery in the third degree … . If the People failed to prove that the defendant displayed what appeared to be a firearm by holding his hand in his pocket, then there was no basis on which the trial court could conclude that the defendant's conduct of holding his hand in his pocket constituted a threat to use immediate physical force upon the complainants in order to overcome their resistance. Accordingly, the verdict of guilt with respect to robbery in the third degree was against the weight of the evidence, and we vacate that conviction and the sentence imposed thereon… .  People v Johnson, 2013 NY Slip Op 06709, 2nd Dept 10-16-13

Sexual Offense Convictions Reversed as Against the Weight of the Evidence---Too Many Inconsistencies and Contradictions in Proof

The Second Department reversed defendant’s convictions on sexual offenses as against the weight of the evidence:

The testimony of the prosecution's witnesses failed to provide a credible foundation for the defendant's convictions due to numerous inconsistencies and contradictions. * * *

…[T]the prosecution's witnesses testified that the defendant and the mother separated in 2002, and, at the time, the defendant had already moved out of the home where the abuse allegedly took place. Thus, many of the alleged incidents of abuse took place after the defendant had moved out of the home and no longer had a key to it. From 2003 to 2005, a restraining order that the mother obtained against the defendant was in effect, and the mother confirmed that, during one period of time in 2004, the defendant conducted all of his visits with the children outside of the home. The testimony of the prosecution's witnesses was generally inconsistent as to whether, during the other visits, the defendant stayed alone with the children in the mother's home, or whether the grandmother or the mother was always present. In any event, although the younger stepdaughter alleged that the defendant molested her twice per week between 2000 and 2004, the trial testimony clearly established that the defendant's access to the children was often limited after he moved out of the mother's home in 2002.  People v McMitchell, 2013 NY Slip Op 06713, 2nd Dept 10-16-13

People Failed to Prove Seizure of Cocaine at Police Station Was Not the Fruit of the Illegal Arrest---Attenuation Not Demonstrated

The Third Department determined the People failed to prove that the cocaine seized from the defendant at the police station after his arrest was not the product of the earlier illegal arrest of the defendant (fruit of the poisonous tree).  At the Dunaway hearing, the People presented no witnesses concerning the seizure at the police station.  County Court’s finding that the “attenuation” doctrine supported the legitimacy of the seizure at the station was therefore not supported by the record:

Under well-established exclusionary rule principles, where police have engaged in unlawful activity – here, by arresting defendant without probable cause – evidence which is a result of the "exploitation of that illegality" is subject to suppression as the "fruit of the poisonous tree" unless one of the recognized exceptions to the exclusionary rule is applicable … .  The exception at issue here, as specifically decided by County Court thereby preserving the issue for appeal (see CPL 470.05 [2]…), is attenuation, that is, whether the production of the cocaine evidence during defendant's illegal detention resulted from the exploitation of that illegality, directly or derivatively … .  The focus of the attenuation exception is "on the presence or absence of 'free will' or voluntariness regarding a defendant's . . . acts which follow illegal police conduct; thus, the attenuation inquiry resolves whether the causal connection between the police misconduct and the later discovery of the challenged evidence is so far removed as to dissipate the taint" … .  "That determination requires consideration of the temporal proximity of the arrest and [acquisition of evidence] . . ., the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct" … .  

Given the complete lack of testimony at the Dunaway hearing regarding the post-illegal-arrest incident at the police station – including any intervening circumstances – in which cocaine evidence was reportedly seized from defendant's person, we find that the People failed to satisfy their burden of proving the applicability of the attenuation exception.  That is, the People did not prove that the evidence was not acquired by exploiting the illegal arrest but, rather, came about by means "sufficiently distinguishable from [the illegality] to be purged of illegality" … . Thus, County Court's finding of attenuation is not supported by the hearing record.   People v Small, 103485, 3rd Dept 10-17-13

No Evidence Defendant Agreed to Adjournment—Indictment Dismissed on Speedy Trial Grounds

In reversing County Court and dismissing the indictment on speedy trial grounds, the Third Department noted there was no evidence the defense agreed to an adjournment during the period another criminal proceeding against the defendant was ongoing:

There is no support in the record for the People's unsubstantiated claim that "it was agreed and understood" that defendant consented to an adjournment or waiver from March 27, 2009 until July 17, 2009.  "Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay" … .  "While a defendant may waive rights under CPL 30.30, the record here contains no evidence of any waiver, written or oral," and the Court of Appeals has made clear that "prosecutors would be well advised to obtain unambiguous written waivers in situations like these" … . As the People failed to meet their burden of proving that the disputed 112-day period was not chargeable to them …, the People did not establish that they were ready for trial within the statutory six-month period (see CPL 30.30 [1] [a]).  Therefore, defendant was entitled to dismissal of the indictment pursuant to CPL 30.30. People v Smith, 104091, 3rd Dept 10-17-13

Plea Allocution Insufficient—Plea Vacated in Absence of Motion to Withdraw or Vacate

The Third Department determined defendant’s guilty plea was invalid (based on the allocution) and vacated it in the absence of a motion to withdraw the plea or vacate the judgment of conviction:

As the record before us does not indicate that defendant ever actually entered a guilty plea pursuant to the plea agreement, we reverse.   While defense counsel indicated that it was defendant's "intent[]" to do so, after County Court had recited the terms of the plea agreement, which defendant indicated he had "heard," defendant never actually admitted his guilt in any manner and did not enter a valid plea.  The plea allocution simply does not reflect that defendant "understood the nature of the charge against him . . . and voluntarily entered into such plea" .. .  Further, while defendant "was not required to recite the elements of his crime or engage in a factual exposition," County Court did not pose any questions, read the count of the indictment, or explain the crime (or its elements) to which he was entering a plea, so as to "establish the elements of the crime" … ; nor did defendant provide "unequivocal . . . responses" or "indicate[] that he was entering the plea because he was, in fact, guilty" … .  

While defendant did not move to withdraw the plea (and we have no indication on this record that defendant moved to vacate the judgment of conviction) so as to preserve his challenge to the factual sufficiency of the plea allocution … , we find it appropriate to exercise our interest of justice jurisdiction and reverse given, in part, that defense counsel may have been dissuaded from making such a motion by County Court's advisement to defendant during the plea colloquy that if he violated the conditions of his release he "will not be permitted to withdraw [his] plea of guilty."  Thus, we find that the plea was invalid. People v Beniquez, 104692, 3rd Dept 10-17-13

Failure to Set Forth Manner and Timing of Restitution Required Remittance

The Third Department determined the failure of County Court to set forth the manner and time of the payment of restitution required that the restitution order be vacated and the matter remitted to correct the omissions.  Peoplev Durham, 105027, 3rd Dept 10-17-13

Leading Questions and Elicitation of Hearing in Grand Jury Proceedings Did Not Constitute Prosecutorial Misconduct

The Third Department reversed County Court and determined leading questions and elicitation of hearsay in the grand jury proceedings did not constitute prosecutorial misconduct:

"Dismissal of an indictment pursuant to CPL 210.35 (5) is a drastic, exceptional remedy and should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury" … .  Contrary to County Court's finding, the record as a whole does not reveal a "pervasive mishandling" of the manner in which this case was presented to the grand jury.  To the extent that the prosecutor asked leading questions or elicited hearsay testimony from the various witnesses, we note that "not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective.  [Rather], the submission of some inadmissible evidence [typically] will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment" … .  Inasmuch as we are satisfied – based upon our review of the grand jury minutes – that there otherwise is legally sufficient (and admissible) evidence to sustain count 1 of the indictment, the isolated instances of hearsay testimony, which were accompanied by appropriate limiting instructions, do not warrant dismissal thereof … .  We similarly are persuaded that the prosecutor's limited use of leading questions did not impair the integrity of the grand jury proceeding… . People v Miller, 105721, 3rd Dept 10-17-13

CRIMINAL LAW/CONSTITUTIONAL LAW

Failure to Move to Dismiss Indictment on Speedy Trial Grounds Constituted Ineffective Assistance of Counsel---Inexcusable Post-Indictment Delay Required Dismissal

The Third Department determined defense counsel’s failure to move to dismiss the indictment on speedy trial grounds constituted ineffective assistance of counsel, requiring that defendant’s motion to withdraw his guilty plea be granted, and the postindictment delay, for which the People had no adequate excuse, required that the indictment be dismissed:

A Washington County grand jury handed up a four-count sealed indictment in October 2011 charging defendant with criminal sale and possession of controlled substances occurring in September and November 2010.  An arrest warrant was issued and provided to the State Police, who for well over six months were reportedly unable to locate defendant, who had relocated, until he was arrested during a traffic stop in Chautauqua County, where he had been residing.  He was arraigned on the indictment on June 14, 2012. * * *

…[D]efendant's ineffectiveness of counsel claim was preserved by his motion to withdraw his plea and adequately alleges that it impacted the voluntariness of his plea and appeal waiver, so as to survive both … .  Thus, we address defendant's speedy trial claim in the context of ascertaining whether he was deprived of meaningful representation, mindful that "[a] single error of failing to raise a meritorious speedy trial claim [may be] sufficiently egregious to amount to ineffective assistance of counsel" … . * * *

The People's fleeting description of the efforts made to locate defendant fell far short of "all reasonable efforts to enforce judicially issued warrants" … required to satisfy the "due diligence" standard (CPL 30.30 [4] [c] [i]).  As such, the People failed to meet their burden of establishing the statutory exclusion for this postindictment prereadiness delay … . Accordingly, all of this unready time would be chargeable to the People … . People v Devino, 105441, 3rd Dept 10-17-13

CRIMINAL LAW/APPEALS

Waiver of Appeal Not Effective

In finding the defendant did not effectively waive his right to appeal, the Second Department explained:

…[T]he record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The defendant's purported waiver of the right to appeal is unenforceable, as the record does not indicate that he had " a full appreciation of the consequences'" of such waiver … . While the defendant signed a written waiver, a written waiver "is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right" … . Accordingly, in the absence of a knowing, voluntary, and intelligent waiver of the right to appeal, the defendant retained his right to challenge the denial of that branch of his omnibus motion which was to suppress identification testimony… . People v Crawford, 2013 NY Slip Op 06705, 2nd Dept 10-16-13

CRIMINAL LAW/EVIDENCE

Uncharged Crime Evidence (911 Call) Admissible to Explain Aggressive Actions of Police

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined it was not an abuse of discretion to allow in evidence a 911 call, which could have been interpreted to have implicated defendant in an uncharged robbery, to explain the aggressive actions of the police when they stopped and seized the defendant, who was convicted of a weapon-possession charge:

Determining whether the probity of such evidence exceeds the prejudice to the defendant “is a delicate business,” and as in almost every case involving Molineux or Molineux-type evidence, there is the risk “that uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value” … .  Yet this case-specific, discretionary exercise remains within the sound province of the trial court …, which is in the best position to evaluate the evidence … .  Thus, the trial court’s decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable.  Rather, it must constitute an abuse of discretion as a matter of law … .

On this record, we cannot say that the admission of the 911 evidence was an abuse of discretion.  The trial court reasonably determined that, given the aggressive nature of the police confrontation with defendant and the attendant risk of improper speculation by the jury, the 911 evidence was necessary to provide background information explaining the police actions, and that its probative value outweighed the potential prejudice to defendant … .  Defendant claims that the 911 evidence had no probative value because he admitted to possessing the gun and agreed not to challenge the propriety of the police stop.  But the 911 evidence was probative of all of the police conduct in this case, not just the stop itself.  The police behaved aggressively after the stop and before they discovered the gun by singling out defendant, grabbing him, and forcing him up against their patrol car.  By specifying why the officers stopped defendant in the first instance, the 911 evidence allowed the jury to put this conduct in the proper context.  

The evidence was also probative of the officers’ credibility, which was a central issue for the jury to resolve on the resisting arrest charge ….  The People had the burden of proving every element of the resisting arrest charge …, and meeting that burden depended largely on the jury’s evaluation of the officers’ testimony and, particularly, the weight the jury accorded it in relation to contrary testimony proffered by defendant … .  Although the officers admitted to grabbing defendant, pushing him against the car, and tackling him when he tried to escape, defendant testified that the officers hit him several times in the head and face, that he never tried to escape, and that the officers’ violent acts were essentially unprovoked.  There was also contrary testimony about how the officers recovered the gun, which direction defendant was walking when he was stopped, and whether he was alone or with two black men as described in the radio run.  The 911 evidence better enabled the jury to resolve these discrepancies and assess the credibility of the officers’ testimony.  Without a complete picture of the events preceding the encounter, the jury would have had little reason not to fault the officers for being overly aggressive and to discredit their testimony as untruthful.  

Any potential for prejudice here was offset by the trial court’s four strong limiting instructions, which emphasized that the 911 evidence “was not to be considered proof of the uncharged crime” … .  People v Morris, 147, Ct App 10-15-13

CRIMINAL LAW/TRIALS

Failure to Exercise Peremptory Challenge Not Ineffective Assistance

In a full-fledged opinion by Judge Smith, the Court of Appeals determined the failure to exercise a peremptory challenge against a juror (Peters) who was a long-time friend of the prosecuting attorney did not amount to ineffective assistance of counsel:

…[D]efendant can prevail on his ineffective assistance claim only by showing that this is one of those very rare cases in which a single error by otherwise competent counsel was so serious that it deprived defendant of his constitutional right (see People v Turner, 5 NY3d 476, 478 [2005]).  We held in Turner that this had occurred where a lawyer overlooked "a defense as clear-cut and completely dispositive as a statute of limitations" (id. at 481).  The mistake that defendant accuses defense counsel of making here was not of that magnitude.

It could be argued that counsel's decision not to use a peremptory challenge on Peters was a mistake for two reasons: because Peters, as a juror, would be biased in the prosecution's favor; and because, by not using a peremptory challenge to excuse him, counsel failed to preserve for appeal any claim that the court erred in rejecting the for-cause challenge.  We consider those arguments separately.

The first argument is a weak one, because defense counsel may reasonably have thought Peters an acceptable juror from the defense point of view.  * * *

The second argument -- that counsel erred by failing to preserve the issue of the for-cause challenge for appeal -- gives us somewhat more pause.  The trial court's decision to deny the challenge for cause may have been error … .  Counsel's choice not to exercise a peremptory challenge deprived defendant of the opportunity to make that argument on appeal; under CPL 270.20 (2), where a defendant has not exhausted his peremptory challenges, a denial of a challenge for cause "does not constitute reversible error unless the defendant . . . peremptorily challenges such prospective juror." Considering the poor odds of acquittal that defendant was facing, it is hard to see how keeping a particular juror -- no matter how strong defense counsel's hunch that he would be favorable -could justify the loss of a significant appellate argument.

We conclude, however, that counsel's mistake, if it was one, was not the sort of "egregious and prejudicial" error that amounts to a deprivation of the constitutional right to counsel… . People v Thompson, 144, Ct App 10-10-13

Trial Judge’s Participation in Readbacks Not Mode of Proceedings Error

In a full-fledged opinion by Judge Read, the Court of Appeals determined the trial judge’s participation in the readbacks of testimony requested by the jury did not amount to a mode of proceedings error.

…[T]he two jury notes -- requests for readbacks of two witnesses' testimony -- were disclosed in their entirety in open court before the trial judge responded to them. And the judge explained exactly how he was going to conduct the readbacks.  If defense counsel considered the judge's intended approach prejudicial, he certainly had an opportunity to ask him to alter course, and it behooved him to do so… . * * *

…[W]e agree with the Second Department that, as a general matter, a trial judge should shun engaging in readbacks of testimony.  In the usual case, it is easy enough for a judge to assign this task to non-judicial court personnel and thereby avoid any risk of creating a misperception in the minds of the jurors. 

In a case where a trial judge nonetheless elects to participate in a readback (certainly, nothing in CPL 310.30 prohibits it), any error is not of the mode of proceedings variety.  "Not every procedural misstep in a criminal case is a mode of proceedings error"; rather, this narrow exception to the preservation rule is "reserved for the most fundamental flaws," such as shifting the burden of proof from prosecution to the defense, or delegating a trial judge's function to a law secretary… . People v Alcide, 143, Ct App 10-10-13

CRIMINAL LAW/EVIDENCE

Accomplice Testimony Corroboration Insufficient Under Law Read to Jury

Even though the evidence of corroboration of accomplice testimony was sufficient under People v Reome, 15 NY3d 188 [2010], it was not sufficient under the stricter criteria of People v Hudson, 51 NY2d 233 [1980] which Reome overruled. Because the jury was read the Hudson criteria, that criteria applied and the evidence of corroboration was not sufficient to support conviction:

Under the Hudson standard, the corroborating evidence was insufficient.  The evidence that was "independent" of the accomplice testimony in the Hudson sense proved, at most, that defendant had driven a minivan that was the same color as a car that was used to commit some of the crimes charged.  This by itself did not tend "to connect the defendant with the commission" of the crimes (CPL 60.22 [1]).  People v Rodriguez, 169, Ct App 10-17-13

FAMILY LAW

Parental Rights Termination Based Upon Mental Illness Reversed---Psychologist’s Report Included Inadmissible Hearsay

The Third Department reversed Family Court’s determination that mother’s parental rights should be terminated based upon her mental illness. The psychologist’s (Liotta’s) report, upon which Family Court based its ruling, should not have been admitted in evidence because it included inadmissible hearsay:

Pursuant to the professional reliability exception to the hearsay rule, an expert witness may rely on information that would otherwise constitute inadmissible hearsay "if it is of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial" … .  While some of the individuals with whom Liotta spoke testified during the hearing and were thus subject to cross-examination, several others did not.  Liotta was not asked and offered no opinion as to whether the information he gleaned from the interviews with individuals who did not testify was professionally accepted as reliable in performing mental health evaluations.  Respondent objected on hearsay grounds to Liotta's testimony about these interviews and to the admission of his report – which contained detailed accounts of each interview – but the court overruled these objections.  Moreover, when respondent's counsel sought to ask about the effect of the collateral source interviews on his opinions, the court precluded him from doing so.  As a result, no proper foundation was laid for the admission of Liotta's testimony or his report… . Matter of Dakota F …, 513066, 3rd Dept 10-17-13

Imputed Income, As Opposed to Actual Income, Used to Determine Mother’s Contribution to College Costs

The Third Department used imputed income to determine mother’s ability to contribute to the children’s college education:

In determining child support or related expenses, a court may impute income to a parent based on that party's failure to seek more lucrative employment that is consistent with his or her education, skills and experience … .  Imputed income more accurately reflects a party's earning capacity and, presumably, his or her ability to pay … .  Thus, imputed income may be attributed to a party as long as the court articulates the basis for imputation and record evidence supports the calculations … .  

Here, Family Court accepted the mother's income as $15,000, without imputing any income to her.  She testified that she earned approximately that amount at her part-time job as a tax preparer, but acknowledged that she has a Bachelor's degree in accounting and could work full time, yet chooses to work reduced hours out of loyalty to her employer.  Because we are basing the college expenses on the parties' ability to pay rather than their actual income, we will impute income to the mother based on her underemployment and ability to earn more ,,, .  Using the mother's testimony that she earned approximately $15,000 working full time from January through April and two days per week for the remainder of the year, we can extrapolate a full-time salary for her at the same earning rate, resulting in an imputed income of $25,000.   Matter of Curley…, 514294, 3rd Dept 10-17-13

Custody Petition by Maternal Grandmother Denied in Favor of Child’s Mother

In affirming the denial of custody to petitioner, the maternal grandmother, in favor of the child’s mother, the Third Department explained the relevant criteria:

"'[A] biological parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances'" … .  Significantly, the nonparent seeking custody bears a heavy burden of establishing the existence of extraordinary circumstances … .

Persistent neglect will be found where the parent "has failed either to maintain substantial, repeated and continuous contact with a child or to plan for the child's future" … . While relinquishing care and control of a child for a continuous period of 24 months will be considered an extraordinary circumstance (see Domestic Relations Law § 72 [2]…), petitioner concedes that no such period of separation occurred here … .  Although the child had visits with petitioner that lasted multiple weeks and, on at least one occasion, three months, the record does not reflect a prolonged period of separation or "a complete abdication of parental rights and responsibilities"… . Matter of Mildred PP v Samantha QQ, 514416, 3rd Dept 10-17-13

No Sound Basis for Family Court’s Determination Shared Custody Was Appropriate

The Third Department determined there was not a sound basis for Family Court’s determination that shared custody was appropriate:

…[N]either party appears to have requested such relief, and the parties' testimony at the fact-finding hearing was replete with mutual allegations of domestic violence and poor communication, as well as descriptions of vastly differing parenting styles. Moreover, although not a determinative factor, we note the absence in the court's decision of any discussion concerning the wishes or preferences of the children, both of whom are in their teens, even though this factor should be "entitled to great weight" … .   Nor is there any discussion addressing the difficulties in a shared custody arrangement raised by the testimony concerning the son's alleged preference to live in the mother's home.  Additionally, while the court specifically found that there was some evidence that the father "does not fully understand or appreciate the daughter's dietary needs and her medical issues," it was not explained how this concern would be met by the alternating physical custody schedule set forth in the decision.  Given these and other concerns raised by the parties' testimony, we deem it appropriate to remit the matter to Family Court for a determination of primary physical custody of the children, accompanied by appropriate findings detailing the facts essential to such decision… . Matter of Glenna Y…, 514558, 3rd Dept 10-17-13

Resort to Contempt for Failure to Make Payments Appropriate

In finding the resort to contempt for failure to make payments pursuant to a judgment in a matrimonial action was appropriate, the Second Department explained the criteria:

Pursuant to Domestic Relations Law § 245, where a spouse fails to make payments of money pursuant to an order or judgment entered in a matrimonial action, the aggrieved spouse may apply to the court to punish the defaulting spouse for contempt, but only if "it appears presumptively, to the satisfaction of the court," that payment cannot be enforced by other means such as enforcement of a money judgment or an income execution order (Domestic Relations Law § 245…). In order to punish the defaulting spouse for contempt, the aggrieved spouse is not required to exhaust all alternative remedies; proof that alternative remedies would be ineffectual is sufficient … . Here, the defendant satisfied that burden… . Longman v Longman, 2013 NY Slip Op 06664, 2nd Dept 10-16-13

Child Support Standards Act Formula Should Have Been Used

The Third Department determined Family Court erred in determining the parents’ respective contributions to child support when it used the catchall factor (factor 10, FamCtAct 413 (1)(f)(10)) to deviate from the Child Support Standards Act (CSSA) formula because the father had custody of the older child all the time and the younger child every other week.  The Third Department determined the CSSA formula should have been applied:

Here, the Support Magistrate stated that he was relying on factor 10, the catch-all provision for "[a]ny other factors the court determines are relevant in each case" (Family Ct Act § 413 [1] [f] [10]).  His stated reason for deviating from the presumptive amount was that the father has physical custody of the older child all of the time and of the younger child every other week, so the Support Magistrate adjusted the amount such that the father would not pay support when both children are with him.  This was merely another way of applying the proportional offset method, which would reduce a parent's child support obligation based upon the amount of time that he or she actually spends with the child … .

The Court of Appeals has rejected this method as impractical, unworkable and contrary to the statute and legislative history … .  … While application of the CSSA formula may seem to produce unfair results where, as here, the parties equally share parenting time with a child, "[t]he difficult policy choices inherent in creating an offset formula for shared custody arrangements are better left to the Legislature" … .  The costs of providing suitable housing, clothing and food for the children during custodial periods do not qualify as extraordinary expenses so as to justify a deviation from the presumptive amount (see Family Ct Act § 413 [1] [f] [9]…). While there may be circumstances in which a deviation is warranted in situations involving shared parenting time, the Support Magistrate's articulated reason did not provide an adequate basis for such deviation here… . Matter of Ryan v Ryan. 514954, 3rd Dept 10-17-13

Family Court Properly Assumed Jurisdiction Over California Order

In affirming Family Court’s dismissal of mother’s petition for a modification of custody, the Third Department noted that Family Court properly assumed jurisdiction over a California custody order:

Family Court properly assumed jurisdiction over this proceeding.  As California no longer had exclusive continuing jurisdiction over this matter (see 28 USC § 1738A [d]), New York could assume jurisdiction for the purpose of modifying the California order so long as it "[was] the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent . . . continues to live in this state" (Domestic Relations Law § 76 [1] [a]; see Domestic Relations Law § 76-b).  "Home state" is defined as "the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding" (Domestic Relations Law § 75-a [7]).   Matter of Clouse v Clouse, 514987, 3rd Dept 10-17-13

Order Prohibiting Visitation Unless Recommended by Therapist Improper

The Third Department affirmed Family Court’s neglect finding but determined the order prohibiting visitation unless recommended by a therapist improperly delegated the court’s authority to make determinations in the best interests of the child:

…[W]e find merit to respondent's argument that Family Court's order prohibiting visitation except "as therapeutically recommended or attendance at therapy with [the child] as recommended by a therapist after review by . . . Family Court" constitutes an improper delegation of the court's authority to make determinations on the issue of the best interests of the child … .  Although the record contains some indication that Family Court recognized and attempted to avoid this delegation, the order failed to require further review unless triggered by the therapist, and did not direct the child to attend therapy with respondent unless recommended by the therapist.  As the order thus makes the recommendation of a therapist a prerequisite for any visitation, we find that there was an improper delegation of the court's authority, and the matter is therefore remitted to Family Court for further proceedings regarding the issue of visitation… . Matters of Alisa M…, 515188, 3rd Dept 10-17-13

Father Not Denied Due Process by Absence from Portion of Neglect Proceeding

In affirming Family Court’s finding that the parents had permanently neglected their daughter, the Third Department noted that father had not been denied due process based on his absence from some of the proceedings:

We reject the father's assertion that his due process rights were violated when Family Court proceeded with a portion of the fact-finding hearing in his absence.  Although a parent in a proceeding seeking to terminate parental rights has a right to be present for all stages of the proceeding, that right is not absolute … .  On the second day of the factfinding hearing, the father's counsel appeared and informed the court that his client would not be present due to health reasons. Rather than request an adjournment, counsel affirmed that the father's attendance at the hearing "would not be required today," requested another hearing date – which the court agreed to schedule – so as to allow the father to testify, and thereafter actively participated in the hearing.   Under these circumstances, we discern no error in Family Court's decision to proceed with the hearing in the father's absence or any prejudice inuring to the father as a result thereof… . Matter of Arianna BB…, 515318, 515317, 3rd Dept 10-17-13

Court Should Have Held Lincoln Hearing to Learn Preferences of 12-Year-Old Child

The Third Department remitted the matter to Family Court for a Lincoln hearing to determine the preferences of the 12-year-old child with respect to custody:

While the decision whether to conduct such a hearing lies within the court's discretion …, it is often the preferable course … .  In this case, the court originally indicated that it intended to speak with the child and later reiterated this position.  While we can assume that the court ultimately decided that an interview with the child was not warranted or appropriate, the record is bereft of any articulation or explanation for such decision.   

Additionally, we cannot ascertain from the record whether Family Court failed to consider the child's wishes with respect to spending time with her father or whether it considered the child's wishes, but rejected them as a basis for a modification. While Family Court stated in regard to the violation petition that the child's wishes did not excuse the mother from complying with the existing orders, it is not clear to what extent, if any, this conclusion played in the court's determination regarding the modification petition.  To be sure, the wishes of this 12-yearold child were "at minimum, entitled to consideration" …, and the record does not reflect whether such consideration was given to the child's wishes.  As a result, and because we conclude that a Lincoln hearing is called for under the circumstances here … , we must remit the modification petition to Family Court. Matter of Yeager v Yeager, 515860, 3rd Dept 10-17-13

FAMILY LAW/EVIDENCE

Failure to Call Treating Physician Allowed Negative Inference in Case Alleging Mother Incapable of Caring for Child by Reason of Mental Illness

The First Department determined Family Court properly found mother incapable of caring for her child by reason of mental illness and noted the court properly drew a negative inference from the mother’s failure to call her own treating physician to rebut the allegations in the petition and a suspended judgment is not available:

The evidence, including testimony from a court-appointed psychologist who examined respondent mother, provided clear and convincing evidence that she is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the child (see Social Services Law § 384-b[4][c], [6][a]…). The psychologist testified that respondent mother suffers from, inter alia, bipolar disorder, which interferes with her ability to care for the child, placing the child at risk of becoming neglected if she is returned to her mother's care. Moreover, respondent mother's testimony confirms that she lacks insight into the nature and extent of her mental illness … . 

Contrary to respondent mother's contention, the Family Court properly exercised its discretion by drawing a negative inference against her for failing to call her treating physician or other medical providers to rebut the allegations raised in the petition and by the testimony after she expressed an intention to call her providers … . 

The Family Court did not err in denying respondent mother's application for a suspended judgment. This dispositional alternative is not available after a fact-finding determination of mental illness (see SSL § 384-b [3] [g], [4] [c]…). Matter of Love Joy F, 2013 NY Slip Op 06792, 1st Dept 10-17-13

ZONING

Variance Should Not Have Been Granted to Homeowner Who Built Swimming Pool In Violation of Set-Back Requirements

The Second Department reversed Supreme Court’s annulment of a Zoning Board of Appeals (ZBA) determination that a variance should not be granted to a homeowner who, without a permit, constructed a swimming pool in violation of a rear-yard setback.

In deciding whether to grant an application for an area variance, the Board "is required to engage in a balancing test that weighs the benefit to the applicant if the variance is granted against the detriment to the health, safety, and welfare of the neighborhood or community" … . The Board must consider whether (1) an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will result by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some feasible method other than an area variance, (3) the requested area variance is substantial, (4) the proposed variance will adversely impact the physical or environmental conditions in the neighborhood if it is granted, and (5) the alleged difficulty was self-created (see Town Law § 267-b[3][b]). * * *

Contrary to the conclusion reached by the Supreme Court, the ZBA's determination had a rational basis and was not arbitrary and capricious. The evidence before the ZBA supported its conclusions that granting the requested variance would produce an undesirable change in the character of the neighborhood, the variance was substantial, and any hardship was self-created (see Town Law § 267-b[3][b]). Contrary to the petitioner's contention, the ZBA's granting of two prior applications seeking, inter alia, area variances for rear-yard setbacks of in-ground swimming pools, did not constitute a precedent from which the ZBA was required to explain a departure, because the two prior applications, inter alia, involved lots that were not near the subject property and were located in different zoning districts. Thus, the petitioners failed to establish that either of the two cases in which a variance was granted bore sufficient factual similarity to the subject application so as to require an explanation from the ZBA… . Matter of Blandeburgo v Zoning Bd of Appeals Town of Islip, 2013 NY Slip Op 06680, 2nd Dept 10-16-13

EDUCATION LAW/LAW SCHOOL ADMISSION

Law School Properly Rescinded Student’s Application for Admission Based Upon Omissions Concerning Criminal Record

The Second Department affirmed a law school’s rescission of admission of a student based upon the student’s responses to a question about criminal charges on the school’s admission form:

When the petitioner endeavored to obtain an advance ruling on his eligibility for and the likelihood of his admission to the New York State bar in light of his conviction, the law school first learned of the original charges that had been asserted against the petitioner, including, inter alia, charges for distribution of LSD in the second degree, possession of LSD with the intent to distribute in the second degree, possession of Ecstasy in the third degree, and possession of Ecstasy with the intent to distribute. The law school then advised the petitioner that he must amend his application for admission and include a full accounting of what transpired with respect to his arrest in July 1999 and an explanation with respect to his failure to initially disclose this information. Although the petitioner advised the law school that the statement in his application concerning his criminal record was not factually incorrect and did not need to be amended, he nonetheless supplemented his application and made available all details and documents surrounding his expunged record. In his supplement, the petitioner acknowledged that he had been arrested for distribution and had knowingly distributed illegal substances, and freely admitted his guilt of that crime, although he maintained that he did not engage in distribution of illegal substances on a regular basis.

The law school's determination was made on the grounds of the petitioner's misrepresentations and omissions on his application regarding the extent of his prior criminal background, and was based upon the exercise of discretion after a full review. Despite the petitioner's subsequent disclosure, under the circumstances presented here, and in light of the true nature of the petitioner's prior criminal activity, the law school's determination to rescind his acceptance was not arbitrary and capricious, and does not warrant judicial intervention… . Matter of Powers v St John’s Univ Sch of Law, 2013 NY Slip Op 06688, 2nd Dept 10-16-13

EDUCATION LAW/CONSTITUTIONAL LAW

In College Disciplinary Action, Victim Need Not Testify---Failure to Detail Factual Findings in Determination Violates Due Process

The Third Department, in a disciplinary action by SUNY Cortland, determined the alleged victim of harassment was not the complainant in the disciplinary proceeding and therefore the alleged victim need not testify in the proceeding.  The court, however, determined the school’s failure to set forth detailed factual findings in its disciplinary determination violated the student’s due process rights. The matter was sent back for those factual findings, after which the student could pursue administrative remedies:

We reject petitioner's contention that the Hearing Panel failed to substantially adhere to its rules and regulations published in the Code … .  Although petitioner correctly notes that the Code requires the "complainant" to present his or her own case, the "complainant" is defined as "any person or persons who have filed disciplinary charges against a student."  Here, the complainant was SUNY Cortland's Director of Judicial Affairs.  Thus, petitioner's contention that the Hearing Panel did not comply with the Code because the victim did not present the case is unavailing.  Furthermore, as the victim was not called as a witness by either side and nothing in the Code establishes that the victim is a party to a disciplinary proceeding, we find that the Hearing Panel substantially complied with its rule requiring it to afford petitioner the opportunity to question all parties.  …
We do agree, however, that petitioner was denied due process because the Hearing Panel failed to set forth detailed factual findings in its disciplinary determination.  In a disciplinary proceeding at a public institution of higher education, due process entitles a student accused of misconduct to "a statement detailing the factual findings and the evidence relied upon by the decision-maker in reaching the determination of guilt" … .   Recognized as one of the "'rudimentary elements of fair play'" in this context …, "[s]uch a statement is necessary to permit the student to effectively challenge the determination in administrative appeals and in the courts and to ensure that the decision was based on evidence in the record"… . Matter of Boyd v SUNY Cortland, 514925, 3rd Dept 10-17-13

TRUSTS AND ESTATES

Conveyance Was For Convenience (Getting a Loan) and Was Not a Gift---Property Therefore Remained in Decedent’s Estate

The Second Department determined Surrogate’s Court correctly found that the conveyance of a one-third interest in property was for the decedent’s convenience and was not a gift.  Therefore, the one-third interest was in the decedent’s estate:

The petitioner presented evidence establishing that the decedent's conveyance was for his convenience, and was designed to obtain a refinance mortgage loan on the property at a more favorable interest rate than would have been offered had decedent's name remained on the title. The petitioner also presented evidence that, after the refinancing was completed, the decedent's one-third interest in the subject real property was to be reconveyed to him. …

"In a turnover proceeding, the burden of establishing that the property was that of the decedent rests with the petitioner, and once that burden is met, it shifts to the respondent to establish that it was a gift" … . Here, the petitioner met her initial burden of establishing that the one-third interest in the subject real property belonged to the decedent. The petitioner's proof included, inter alia, deposition testimony given by [decedent’s brother] George in a related proceeding, wherein he acknowledged that the decedent's one-third interest was to be reconveyed to the decedent after the refinancing. [Decedent’s sister] Elaine failed to come forward with clear and convincing proof that the decedent intended to make a gift of his interest in the subject real property… .  Matter of Voyiatgis, 2013 NY Slip Op 06700, 2nd Dept 10-16-13

EMPIRE ZONES

Revocation of Empire Zone Program Certifications Cannot Be Applied Retroactively

The Third Department noted that revocation of Empire Zone Program certifications cannot be applied retroactively pursuant to James Sq Assoc LP v Mullen, 21 NY3d 233 [2013].  Matter of Bond, Schoeneck & King PLLC v NY Dept of Economic Development…, 514812, 3rd Dept 10-17-13

ADMINISTRATIVE LAW/MEDICAID

New Medicaid Reimbursement Procedures Did Not Violate State Administrative Procedure Act

The Third Department affirmed Supreme Court and determined that a modified Medicaid reimbursement procedure for the school supportive health services program (SSHSP) did not violate the State Administrative Procedure Act because the new administrative directives (referred to as Q & A’s) were not new rules triggering the requirements of the Act:

The documentation and reimbursement eligibility requirements reflected in the challenged Q & As were not required to be promulgated as rules under the State Administrative Procedure Act.  For purposes of rule-making notice and filing requirements (see State Administrative Procedure Act § 202), a rule is defined as "the whole or part of each agency statement, regulation or code of general applicability that implements or applies law, or prescribes . . . the procedure or practice requirements of any agency, including the amendment, suspension or repeal thereof" (State Administrative Procedure Act § 102 [2] [a]).  Expressly excluded from the definition are "rules concerning the internal management of the agency which do not directly and significantly affect the rights of or procedures or practices available to the public" (State Administrative Procedure Act § 102 [2] [b] [i]), and "forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory" (State Administrative Procedure Act § 102 [2] [b] [iv]).  The Court of Appeals has recognized "that there is no clear bright line between a 'rule' or 'regulation' and an interpretative policy" (Cubas v Martinez, 8 NY3d 611, 621 [2007]).  Courts have previously found administrative directives to be interpretive statements when they rely on and constitute reasonable interpretations of existing regulations or statutes, or merely address the type of documentation needed to establish whether a predetermined test of eligibility has been met … .  Board of Education of the Kiryas Joel Village Union Free School District, 516336, 3rd Dept 10-17-13