New York Law Review

Author: The New York Law Review

  • People v. Jurgins, No. 178 (N.Y. 2015): Preservation of Challenges to Predicate Felonies in Sentencing

    People v. Jurgins, No. 178 (N.Y. Dec. 17, 2015)

    A challenge to the legality of a sentence based on an allegedly improper predicate felony determination is preserved for appellate review when raised in a CPL 440.20 motion, even if not raised at the time of sentencing.

    Summary

    The defendant, Mark Jurgins, appealed his second felony offender adjudication, arguing that his prior Washington, D.C. conviction for attempted robbery was not equivalent to a New York felony. The Court of Appeals reversed the Appellate Division’s decision, holding that while the defendant failed to preserve this argument on direct appeal, the issue was properly preserved for review because it was raised in a CPL 440.20 motion to set aside the sentence. The court determined that the D.C. statute under which the defendant was convicted could encompass acts that would be misdemeanors in New York. Therefore, it was not a proper basis for a predicate felony offender adjudication. The case underscores the importance of timely raising sentencing challenges through CPL 440.20 motions and clarifies how courts determine the equivalency of foreign convictions for sentencing purposes.

    Facts

    Defendant pleaded guilty to first-degree robbery, with the plea conditioned on his being treated as a second felony offender based on a 2000 D.C. conviction for attempted robbery. During the plea, the court informed the defendant of the prior conviction and provided an opportunity to challenge it, which he did not do. He was subsequently sentenced to 25 years. After sentencing, the defendant moved under CPL 440.20 to set aside the sentence, claiming ineffective assistance and illegal sentencing because the D.C. conviction did not qualify as a predicate felony. The trial court denied the motion, and the Appellate Division affirmed the conviction, but modified the sentence. The Court of Appeals granted leave to appeal.

    Procedural History

    The Supreme Court of Bronx County adjudicated the defendant a second felony offender and sentenced him to 25 years in prison. Defendant moved, under CPL 440.20, to set aside his sentence, which the Supreme Court denied. The Appellate Division affirmed the judgment and denial of the motion, although it modified the sentence. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the defendant’s argument that his predicate felony was not equivalent to a New York felony was preserved for review on appeal from his judgment of conviction.

    2. Whether the defendant’s challenge to his sentence was preserved for review where it was raised in his CPL 440.20 motion.

    3. Whether the D.C. conviction for attempted robbery qualified as a predicate felony under New York law.

    Holding

    1. No, because the defendant failed to raise the issue at sentencing.

    2. Yes, because the issue was raised in a CPL 440.20 motion.

    3. No, because the D.C. statute could encompass acts that would not be felonies under New York law.

    Court’s Reasoning

    The court distinguished between the requirements for preserving an issue for direct appeal and preserving it when raised in a CPL 440.20 motion. While the defendant did not preserve his challenge on direct appeal because he did not object to the predicate felony determination at sentencing, his CPL 440.20 motion properly preserved the challenge. A CPL 440.20 motion is the correct vehicle for raising claims that a sentence is “unauthorized, illegally imposed or otherwise invalid.” The court then examined the D.C. statute to determine if the elements of the offense were equivalent to a New York felony, which requires a prison sentence exceeding one year. Because the D.C. statute criminalized conduct (e.g., “sudden or stealthy seizure or snatching”) that would constitute a misdemeanor in New York, the D.C. conviction could not serve as a predicate felony.

    Practical Implications

    This case highlights the importance of meticulously raising all sentencing-related objections during both the sentencing proceeding and in subsequent CPL 440.20 motions. It clarifies that a CPL 440.20 motion provides a crucial opportunity to challenge the legality of a sentence, even if the issue was not raised at the initial sentencing. The ruling underscores that courts will examine the elements of the foreign jurisdiction’s statute to compare them with corresponding New York statutes. If the foreign statute covers conduct that would be a lesser crime or no crime in New York, it will not be a predicate for enhanced sentencing. Attorneys must carefully analyze the specific wording of foreign statutes to determine equivalency, which may involve consulting case law from the foreign jurisdiction. Failure to object at sentencing may forfeit the argument on direct appeal, but can still be raised in a CPL 440.20 motion.

  • People v. Soto, 25 N.Y.3d 1067 (2015): Admissibility of Declarations Against Penal Interest

    25 N.Y.3d 1067 (2015)

    A statement against penal interest is admissible if the declarant is unavailable, aware that the statement is against their penal interest at the time of making it, has competent knowledge of the facts, and if there are supporting circumstances attesting to its trustworthiness and reliability.

    Summary

    In People v. Soto, the New York Court of Appeals addressed the admissibility of a declaration against penal interest. The defendant, Victor Soto, was convicted of driving while intoxicated after a car accident. A witness, Janny Hunt, provided a statement to a defense investigator claiming she was the driver. The trial court deemed the statement inadmissible because Hunt did not appear to understand the penal consequences of her statement at the time she made it. The Court of Appeals reversed, holding that Hunt’s subsequent questions about potential trouble and requests for an attorney were sufficient to establish her contemporaneous awareness of the statement’s adverse penal interest. The Court also found that Hunt’s statement was sufficiently reliable because it was corroborated by another witness.

    Facts

    Victor Soto was arrested for driving while intoxicated after colliding with a parked car. A witness saw Soto driving erratically before the accident. Later, a witness, Lamar Larson, saw a woman driving Soto’s car shortly before the accident. Two weeks after the accident, Janny Hunt, told Soto’s investigator that she was the driver, stating she hit the parked car and fled the scene. Initially, Hunt expressed concern that her parents would find out about the accident. After signing the statement, Hunt asked about potential legal consequences, including whether she could get in trouble and requested an attorney. At trial, Hunt invoked her Fifth Amendment rights. The defense sought to admit Hunt’s statement as a declaration against penal interest.

    Procedural History

    At trial, the defense sought to admit Janny Hunt’s statement as a declaration against penal interest. The trial court held a hearing and ultimately ruled the statement inadmissible. The Appellate Division reversed, holding that the statement should have been admitted. The dissenting justice in the Appellate Division granted the People leave to appeal. The New York Court of Appeals affirmed the Appellate Division’s decision, finding the statement admissible.

    Issue(s)

    1. Whether Hunt’s statement was properly excluded as a declaration against penal interest because she was not aware that it was against her penal interest at the time she made the statement.

    2. Whether the statement was sufficiently reliable to be admitted.

    Holding

    1. Yes, because Hunt’s subsequent questions about potential legal trouble, combined with Larson’s testimony, demonstrated her contemporaneous awareness that her statement was against her penal interest.

    2. Yes, because Larson’s testimony corroborated Hunt’s statement, establishing its reliability.

    Court’s Reasoning

    The Court of Appeals relied on the four-part test established in People v. Settles for determining the admissibility of a declaration against interest. The key issue was whether Hunt was aware the statement was against her penal interest *at the time* she made it. The Court held that Hunt’s immediate post-statement inquiries about getting into trouble and her request for an attorney satisfied the requirement of contemporaneous awareness of penal consequences. The Court stated, “[s]econds after she made the statement to the defense investigator, Hunt asked if she could get into trouble and asked for an attorney.” The Court also found that because Hunt’s statement, which exculpated the defendant, was corroborated by Larson’s testimony, it was sufficiently reliable for admission.

    Practical Implications

    This case clarifies the contemporaneous awareness requirement for declarations against penal interest, particularly when the declarant is not entirely aware of all legal ramifications when making the statement. Attorneys should carefully assess the timing and nature of any indication by the declarant of concern regarding potential legal trouble. The case underscores the importance of corroborating evidence to establish the reliability of such statements. It also highlights that the penal consequences need not be severe to qualify as a declaration against penal interest, especially in cases where the statement exculpates the defendant. This ruling will affect the handling of hearsay exceptions in cases where a witness’s statement might shift culpability from the defendant.

  • People v. Pavone, No. 199 (N.Y. 2015): New York State Constitutional Protection Against the Use of Post-Arrest Silence

    People v. Pavone, No. 199 (N.Y. Dec. 17, 2015)

    The use of a defendant’s silence after being Mirandized, to challenge his credibility regarding a potential defense, violates the due process clause of the New York State Constitution.

    Summary

    Anthony Pavone was convicted of first-degree murder. At trial, he presented an extreme emotional disturbance (EED) defense. The prosecution used Pavone’s post-Miranda silence to challenge his credibility regarding the EED defense. The Court of Appeals of New York held that this violated the New York State Constitution’s due process clause because it penalized Pavone for exercising his right to remain silent, as guaranteed by the state constitution. Although the court found constitutional error, it held that the error was harmless because the evidence against the EED defense was overwhelming. The court also rejected Pavone’s claims of ineffective assistance of counsel.

    Facts

    Pavone shot and killed his former lover, Patricia Howard, and her new partner, Timothy Carter. Pavone admitted to the shootings, but he claimed he was acting under an EED, stating he was in a state of depression and lost rational control. The prosecution presented evidence that Pavone had stalked Howard, left her several messages, and was jealous of her relationship with Carter. Evidence included phone messages, forensic evidence, and witness testimony. The prosecution also highlighted Pavone’s actions after the murders, including fleeing the scene, removing the battery from his phone, and surrendering to police after a period of time. Expert testimony was presented by both sides regarding Pavone’s mental state.

    Procedural History

    Pavone was convicted on all charges at trial. The Appellate Division affirmed the conviction, concluding that the admission of the testimony regarding Pavone’s post-Miranda silence was harmless error, and that he failed to establish his EED defense. The dissent argued that the evidence against the EED defense was not so overwhelming to support a conclusion that there was no reasonable possibility that use of defendant’s silence affected the jury’s rejection of the defense. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the prosecution’s use of Pavone’s post-arrest silence to challenge his credibility violated his constitutional rights.
    2. Whether Pavone received ineffective assistance of counsel due to counsel’s failure to object to the use of his silence and failure to provide expert witnesses with recordings.

    Holding

    1. Yes, because using a defendant’s post-Miranda silence to challenge the credibility of his defense violates the New York State Constitution’s due process protections.
    2. No, because Pavone received meaningful representation under the state constitution.

    Court’s Reasoning

    The court found that the New York State Constitution provides broader protections than the Federal Constitution in cases involving individual rights. The court cited New York’s long-standing rule that a defendant’s silence at the time of arrest cannot be used against him. The court held that the implied promise in Miranda warnings that a defendant’s silence will not be used against him is a violation of due process under the state constitution. The court reasoned that a defendant’s silence has ambiguous probative value, and the prejudice to the defendant in such circumstances outweighs any probative value. Although the court found constitutional error, it held that the error was harmless, as there was overwhelming evidence that Pavone did not suffer from EED at the time of the murders. The court also found no merit in Pavone’s ineffective assistance of counsel claims, concluding that counsel’s actions were strategic choices and did not prejudice the defense.

    Practical Implications

    This case emphasizes that, in New York, prosecutors cannot use a defendant’s post-arrest silence, even for impeachment purposes, as it violates the state’s due process protections. This ruling requires attorneys to be vigilant in objecting to any attempt by the prosecution to introduce such evidence. Additionally, defense attorneys must be mindful of how their actions might be perceived if a defendant’s silence is brought up at trial. This decision also clarifies that a defendant does not open the door to questions about post-Miranda silence just by stating that his or her memory is affected by the trauma of events. This case underscores the broader protections afforded by the New York State Constitution.

  • People v. Kaity Marshall, No. 195 (N.Y. 2015): Eliminating the

    People v. Kaity Marshall, No. 195 (N.Y. Dec. 17, 2015)

    A pre-trial display of a defendant’s photograph to a witness by a prosecutor or police is an identification procedure that requires a Wade hearing to determine if it was unduly suggestive, regardless of the prosecution’s stated purpose for the display.

    Summary

    The New York Court of Appeals eliminated the “trial preparation” exception to Wade hearings, clarifying that any pre-trial display of a defendant’s likeness to a witness is subject to Wade scrutiny. In People v. Marshall, the court addressed whether a prosecutor’s display of the defendant’s arrest photograph to the complainant, to help the complainant describe the defendant’s hairstyles, constituted an identification procedure, requiring a Wade hearing. The Court held that the display was indeed an identification procedure, rejecting the trial court’s reliance on the trial preparation exception derived from People v. Herner. Despite finding the trial court erred in denying the Wade hearing, the Court affirmed because it found sufficient evidence of an independent source for the in-court identification.

    Facts

    Kaity Marshall was charged with several offenses arising from an assault on a bus passenger. The complainant saw Marshall two months after the incident and identified her, leading to Marshall’s arrest. Eighteen months later, the day before trial, the prosecutor showed the complainant Marshall’s arrest photograph to help her describe Marshall’s hairstyles. Marshall’s attorney requested a Wade hearing to determine the suggestiveness of the photo display, but the trial court denied it, relying on the trial preparation exception. At trial, the complainant identified Marshall, and the bus driver also identified her. Marshall presented an alibi defense, which was disputed. The trial court found Marshall guilty, and the Appellate Term affirmed, leading to an appeal to the Court of Appeals.

    Procedural History

    Following the prosecutor showing the arrest photograph to the complainant, Marshall sought a hearing to determine whether the display was an unduly suggestive identification procedure. The trial court held a hearing, but limited its scope based on the trial preparation exception and denied Marshall’s request for a full Wade hearing. Marshall was found guilty at trial, and the Appellate Term affirmed, upholding the trial court’s denial of a Wade hearing. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the trial court erred by denying Marshall’s request for a Wade hearing regarding the prosecutor’s display of the arrest photograph to the complainant, based on a “trial preparation” exception to the hearing requirement.

    2. If a Wade hearing was required, whether the court’s error was harmless because of an independent source for the in-court identification.

    Holding

    1. Yes, because the trial court erred in denying the Wade hearing. The trial preparation exception does not apply, and a hearing should have been held to assess the suggestiveness of the pre-trial photo display.

    2. Yes, the error was harmless, because the complainant’s identification of Marshall at the hospital provided an independent source for the in-court identification.

    Court’s Reasoning

    The Court of Appeals held that the trial court improperly denied the defendant’s request for a Wade hearing, because the pre-trial display of the photograph was an identification procedure. The court recognized the dangers of mistaken eyewitness identifications and the risks associated with suggestive pre-trial identification procedures. The court noted that “the relevant inquiry remains the same: was the observation of defendant unduly suggestive, rendering the subsequent identification unreliable.” The court found the

  • People v. Holley, 25 N.Y.3d 548 (2015): Presumption of Suggestiveness in Photo Array Identification Procedures

    25 N.Y.3d 548 (2015)

    The failure to preserve a photo array, whether physical or computer-generated, shown to an identifying witness creates a rebuttable presumption that the array was unduly suggestive.

    Summary

    In People v. Holley, the New York Court of Appeals addressed the consequences of failing to preserve photo arrays used in eyewitness identification procedures. The court held that the failure to preserve such arrays, especially those generated by computer systems, gives rise to a rebuttable presumption of suggestiveness. This means the prosecution must produce evidence to show the fairness of the procedure. The court determined that the prosecution in this case successfully rebutted the presumption, and the identification evidence was admissible because the police presented sufficient testimony about the photo array procedure to demonstrate its fairness.

    Facts

    Two women were assaulted on a subway platform. The perpetrator was described as a skinny Black male. The police used a computer-generated photo array to show potential suspects. The array was created using the police department’s photo manager system and the witness identified the defendant after viewing multiple pages of the photo array. The police did not preserve a record of all the photographs that were viewed by the witness. A lineup was later conducted, where the witness again identified the defendant. At a suppression hearing, the defendant sought to suppress the identification evidence arguing, among other things, that the photo array procedure was unduly suggestive due to the failure to preserve the photo array.

    Procedural History

    The trial court denied the motion to suppress the identification testimony. The Appellate Division affirmed the trial court’s decision. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the failure to preserve a computer-generated photo array shown to a witness creates a presumption of suggestiveness, shifting the burden to the prosecution to prove the fairness of the procedure.

    2. If such a presumption exists, whether the prosecution presented sufficient evidence to rebut it in this case.

    Holding

    1. Yes, because the court explicitly adopted the rule from the Appellate Division that the failure to preserve a photo array creates a rebuttable presumption of suggestiveness.

    2. Yes, because the court found that the People’s evidence of the photo array procedure was sufficient to rebut the presumption.

    Court’s Reasoning

    The Court of Appeals considered the established burden-shifting framework in evaluating the admissibility of identification evidence. First, the prosecution must produce evidence demonstrating the fairness of the identification procedure. If the prosecution meets this initial burden, the burden shifts to the defendant to prove the procedure was unduly suggestive. The court found that the failure to preserve the photo array, whether physical or computer-generated, creates a rebuttable presumption that the prosecution did not meet its initial burden of demonstrating fairness. The court endorsed the Appellate Division’s precedent that the failure to preserve a photo array gives rise to a rebuttable presumption of suggestiveness. The court reasoned that this presumption aligns with the burden-shifting framework and is necessary to protect a defendant’s right to a fair trial.

    The court further clarified that, despite the presumption, the prosecution can still meet its burden by providing detailed testimony about the procedures used and the context in which the identification took place. Here, the court held that the People presented sufficient testimony, including the volume of photos viewed and the fact that the police did not initially focus on the defendant, to rebut the presumption of suggestiveness and demonstrate the fairness of the photo array. The court also upheld the lineup identification.

    Practical Implications

    This case reinforces the importance of preserving records of photo array identification procedures, including those using computer-generated systems. Prosecutors and law enforcement should create and preserve a record of all photo arrays viewed by witnesses, including the order and arrangement of the photos. Failure to do so will trigger a presumption of suggestiveness, potentially leading to suppression of the identification evidence. The case also highlights the importance of detailed testimony about the identification process to rebut the presumption and demonstrate fairness. Defense attorneys should aggressively challenge the admissibility of identification evidence when the prosecution fails to preserve photo arrays. The case also has implications for police departments implementing photo array procedures.

  • People v. Maxam, 25 N.Y.3d 531 (2015): Finality of a Criminal Judgment for Retroactivity Purposes When No Direct Appeal is Filed

    People v. Maxam, 25 N.Y.3d 531 (2015)

    When a defendant does not file a direct appeal, a criminal judgment becomes final 30 days after sentencing, coinciding with the expiration of the automatic right to appeal, for the purpose of applying new rules of federal constitutional criminal procedure in state post-conviction collateral review proceedings.

    Summary

    The New York Court of Appeals addressed the determination of finality of a judgment in a criminal case when the defendant does not file a direct appeal. The case involved a defendant seeking to apply the rule from Padilla v. Kentucky, which required counsel to advise non-citizen clients of potential deportation consequences of a guilty plea. The court held that when a defendant does not file a direct appeal, the judgment becomes final 30 days after sentencing. This finality date is based on the expiration of the timeframe for filing a notice of appeal under CPL 460.10 (1)(a), and the judgment does not remain open until the end of a potential year-long window to seek an extension to file a late notice of appeal under CPL 460.30 (1).

    Facts

    In 2008, Maxam was charged with assault. He pleaded guilty in 2009 and was sentenced to probation. Maxam did not file a direct appeal. Later, he sought to vacate his conviction, citing Padilla v. Kentucky, claiming his counsel failed to inform him about potential deportation consequences. The Supreme Court denied Maxam’s motion, concluding that Padilla should not be applied retroactively. The Appellate Division reversed, holding that the judgment did not become final until the end of the CPL 460.30 (1) period. The People appealed to the Court of Appeals.

    Procedural History

    Maxam was convicted in Supreme Court in 2009. He did not appeal. He filed a CPL 440.10 motion in Supreme Court seeking to vacate the judgment which was denied. The Appellate Division granted leave to appeal, and subsequently, the Appellate Division reversed the Supreme Court’s order. The Court of Appeals granted leave to appeal the Appellate Division’s decision.

    Issue(s)

    Whether a judgment of conviction becomes final for purposes of applying a new rule of federal constitutional criminal procedure when a defendant does not file a direct appeal, specifically, whether the relevant date of finality is 30 days after sentencing or the end of the one-year period during which a defendant could seek an extension of time to appeal under CPL 460.30(1).

    Holding

    No, the judgment becomes final 30 days after sentencing, because this aligns with the expiration of the defendant’s automatic right to appeal, not when a defendant could potentially file a late notice of appeal.

    Court’s Reasoning

    The Court of Appeals noted that the US Supreme Court in Chaidez v. United States held that Padilla was a “new rule” that would not be applied retroactively. The court differentiated finality in cases with a direct appeal (final when direct review and discretionary review is exhausted) from those without a direct appeal. The court found that, where no direct appeal is taken, the judgment becomes final when the opportunity to appeal expires. It rejected the defendant’s argument that the finality date should be extended by the one-year grace period in CPL 460.30 (1). The court reasoned that adopting the defendant’s view would create uncertainty and potentially broaden the retroactive application of Padilla. The court emphasized that the defendant had not sought an extension of time to file a notice of appeal. The court noted that “a defendant seeking to file a late notice of appeal pursuant to CPL 460.30 (1) must demonstrate that he or she was prevented from timely filing a notice of appeal due to the “improper conduct of a public servant or improper conduct, death or disability of the defendant’s attorney,” or the “inability of the defendant and his attorney to have communicated . . . concerning whether an appeal should be taken” (CPL 460.30 [1] [a], [b]).”

    Practical Implications

    This case is essential for determining the availability of new constitutional rules for defendants who did not file direct appeals. Attorneys must understand that, for cases where there’s no appeal filed, the clock starts running on the 30th day after sentencing to determine finality for the purpose of applying new rules of criminal procedure. This impacts the ability of a defendant to collaterally attack a conviction based on a new legal principle, which can affect immigration consequences such as deportation. The ruling also clarifies the finality of judgments in the context of Padilla v. Kentucky and its retroactivity. This case sets a clear rule for finality, avoiding potential extensions based on the availability of actions that were not taken. The practical effect is that the defendant’s opportunity to claim that the attorney was ineffective for failing to advise on immigration consequences is restricted because his judgment became final before the Padilla case was decided.

  • Matter of Michael v. Williams, 29 N.Y.3d 444 (2017): Extended Disruption of Custody as an Extraordinary Circumstance for Grandparent Custody

    Matter of Michael v. Williams, 29 N.Y.3d 444 (2017)

    A grandparent can establish standing to seek custody by demonstrating an “extended disruption of custody,” even if the parent maintained some contact with the child, provided the parent voluntarily relinquished care and control for a prolonged period.

    Summary

    The New York Court of Appeals held that a grandparent can demonstrate “extraordinary circumstances” sufficient to establish standing to seek custody of a grandchild, even when the child has contact with a parent, if the grandparent has cared for the child for an extended period and the parent has voluntarily relinquished care and control. The court reversed the Appellate Division, which had dismissed the grandparents’ petition, finding that the parent’s contact precluded a finding of extraordinary circumstances. The Court of Appeals emphasized that strict interpretations of “extended disruption” would undermine the legislative intent to provide a path for grandparents to seek custody in appropriate situations.

    Facts

    The child lived with his paternal grandparents from infancy until age ten. The parents had joint legal custody, but the mother primarily lived apart from the child. The grandparents facilitated the mother’s contact with the child, including overnights and vacations. The mother signed documents allowing the grandparents to make educational and medical decisions for the child. After a dispute and change in the mother’s living situation, she refused to return the child to the grandparents, asserting her right to primary physical custody under the existing order. The grandparents filed a petition for custody.

    Procedural History

    The Family Court granted the grandparents joint custody with the father and primary physical custody. The Appellate Division reversed, holding the grandparents lacked standing. The New York Court of Appeals granted the grandparents leave to appeal and reversed the Appellate Division, remanding the case for further consideration.

    Issue(s)

    1. Whether the grandparents established an “extended disruption of custody” constituting extraordinary circumstances to give them standing under Domestic Relations Law § 72 (2), despite the mother’s contact with the child.

    Holding

    1. Yes, because the grandparents demonstrated an extended disruption of custody under Domestic Relations Law § 72 (2) despite the mother’s contact with the child, therefore establishing extraordinary circumstances.

    Court’s Reasoning

    The court applied the two-prong test from Matter of Bennett v. Jeffreys, requiring extraordinary circumstances and a determination of the child’s best interests. The court focused on Domestic Relations Law § 72 (2), which defines an extended disruption of custody as an extraordinary circumstance for grandparents, including a prolonged separation of the parent and child for at least 24 months where the parent voluntarily relinquished care and control, and the child resided with the grandparents. The court reasoned that requiring a lack of contact would render the statute redundant and undermine the legislative intent to give grandparents a clear path to seek custody. “If we interpret the definition of “extended disruption of custody” under Domestic Relations Law § 72 (2) to mean that the parent must not have had any contact, or at least any significant contact, with the child for at least 24 months, then this statutory ground of extraordinary circumstances would essentially be eviscerated, or at best redundant and unnecessary.” The court emphasized that the mother had relinquished control through the signed documents and her actions over several years, and the grandparents’ actions in the child’s daily life and well-being constituted the required “extended disruption” of custody even with contact from the mother. The court also cited that, “Where, as here, the mother has effectively transferred custody of the child to the grandparents for a prolonged period of time, the circumstances rise to the level of extraordinary, as required under our law to confer standing upon the grandparents to petition the courts to formally obtain legal custody.”

  • People v. Rosario, 28 N.Y.3d 599 (2017): Duty of Counsel to Consult Regarding the Right to Appeal

    People v. Rosario, 28 N.Y.3d 599 (2017)

    Defense counsel has a constitutional duty to consult with a client about an appeal when a rational defendant would want to appeal or the defendant has demonstrated an interest in appealing.

    Summary

    The New York Court of Appeals considered the extent of defense counsel’s duty to consult with a client regarding the right to appeal following a guilty plea and sentencing. The court affirmed the lower court’s ruling in one case, where the record showed the defendant had been properly advised and waived his right to appeal. However, the court considered the record in a second case less clear, and a dissenting opinion argued that where the record failed to show counsel consulted with the defendant regarding their right to appeal, a hearing should be granted. This case reinforces the importance of detailed communication between defense counsel and their clients regarding their appellate rights and is an important reminder of the duty of counsel to ensure their clients understand their right to appeal.

    Facts

    The case involved two separate defendants, Rosario and Llibre, who had both pleaded guilty and been sentenced. Following the sentencing, each defendant filed a motion challenging the effectiveness of their counsel, claiming that they were not properly informed about their right to appeal. In People v. Llibre, the record contained documentation of an oral and written waiver, affirming that Llibre had discussed the right to appeal with defense counsel. In People v. Rosario, however, the record was less clear. It didn’t demonstrate that counsel had consulted with Rosario about appealing.

    Procedural History

    Both cases were initially heard in lower courts. The motions to challenge the effectiveness of counsel were denied at the trial court level. Subsequently, both cases were appealed to the New York Court of Appeals. The Court of Appeals affirmed the lower court’s decision regarding People v. Llibre, while considering the merits of the appeal in People v. Rosario.

    Issue(s)

    1. Whether defense counsel has a duty to consult with a defendant about the right to appeal.

    2. Whether the record in People v. Llibre conclusively demonstrated that the defendant was advised of their right to appeal and waived it.

    3. Whether the record in People v. Rosario was sufficient to demonstrate that defense counsel had adequately consulted with the defendant regarding their right to appeal.

    Holding

    1. Yes, defense counsel has a duty to consult with a defendant about the right to appeal when it’s reasonable to believe that the defendant would want to appeal.

    2. Yes, the record in People v. Llibre conclusively demonstrated that the defendant was advised of their right to appeal and waived it.

    3. No, the record in People v. Rosario was insufficient to show that defense counsel had adequately consulted with the defendant regarding their right to appeal.

    Court’s Reasoning

    The court referenced the U.S. Supreme Court case Roe v. Flores-Ortega, which established that “counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” The court also highlighted that to “consult” means “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” In People v. Llibre, the record included direct evidence of the defendant having been informed of his right to appeal and expressly waiving this right. In People v. Rosario, the record was devoid of any evidence of consultation between the defendant and defense counsel on the possibility of appeal.

    The dissenting opinion emphasized the need for defense counsel to ensure a defendant’s understanding of their appellate rights, especially in cases of potential confusion. It also noted the absence of an affidavit from defense counsel in Rosario, which could have provided clarity on whether consultation had occurred.

    Practical Implications

    This case underscores the importance of clear and documented communication between defense counsel and their clients regarding the right to appeal. It reinforces the

  • People v. Ortiz, 27 N.Y.3d 433 (2016): Advocate-Witness Rule and the Limits of Collateral Estoppel in Criminal Trials

    27 N.Y.3d 433 (2016)

    The advocate-witness rule requires an attorney to withdraw if it becomes apparent that she must testify on behalf of her client, and collateral estoppel should not be applied where it would require a witness to materially alter their testimony or provide a misleading account.

    Summary

    In People v. Ortiz, the New York Court of Appeals addressed two issues: the applicability of collateral estoppel in a criminal case and the advocate-witness rule. The defendant was acquitted of first-degree burglary (which required the use of a dangerous instrument), but was later tried for second-degree burglary. The prosecution sought to introduce evidence of a razor blade, which the defendant’s counsel objected to based on collateral estoppel. The court held that collateral estoppel did not apply because it would require key witnesses to materially alter their testimony. The court also addressed the advocate-witness rule, concluding that the trial court erred when it did not allow defense counsel to withdraw after a prior statement made by counsel at arraignment was used to impeach the defendant’s testimony. The court reversed the conviction and ordered a new trial.

    Facts

    Luis Ortiz was charged with burglary and related offenses. The prosecution alleged that Ortiz, while holding a razor blade to the victim’s neck, forced his way into an apartment. At the first trial, Ortiz testified to a different version of events, claiming a fight. The jury acquitted him of first-degree burglary (which required the use of a dangerous instrument) but convicted him of second-degree burglary. At a second trial for second-degree burglary, the prosecution sought to introduce evidence of the razor blade. Additionally, during cross-examination, the prosecutor introduced a statement made by defense counsel at arraignment, which contradicted the defendant’s testimony. Defense counsel moved to withdraw, arguing that her testimony was necessary. The trial court denied her motion, and the defendant was convicted.

    Procedural History

    Ortiz was initially convicted of second-degree burglary but acquitted of first-degree burglary. The Appellate Division reversed the conviction for reasons not relevant. At the second trial, the trial court allowed evidence of the razor blade and denied defense counsel’s motion to withdraw. The Appellate Division modified the judgment by vacating the sentence and remanding the case for resentencing, and affirmed the conviction. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether collateral estoppel barred the introduction of evidence regarding the razor blade at the second trial.

    2. Whether the trial court erred when it did not allow defense counsel to withdraw or declare a mistrial after her prior statement was used to impeach the defendant.

    Holding

    1. No, because collateral estoppel did not apply.

    2. Yes, because the trial court should have granted defense counsel’s motion to withdraw or declared a mistrial.

    Court’s Reasoning

    The court analyzed the doctrine of collateral estoppel, which prevents the relitigation of issues decided in a defendant’s favor in a prior trial. The court found that in this case, the practical difficulties of applying collateral estoppel outweighed its benefits. Witnesses would have to materially alter their testimony and mislead the jury to omit reference to the razor blade. This presented an

  • Cusimano v. Schnurr, 26 N.Y.3d 393 (2015): Waiver of Arbitration by Litigation Conduct

    26 N.Y.3d 393 (2015)

    A party waives its right to arbitrate a dispute when its litigation conduct is inconsistent with the intent to arbitrate and causes prejudice to the opposing party.

    Summary

    The New York Court of Appeals held that the plaintiffs, Rita and Dominic Cusimano, waived their right to arbitration by actively pursuing litigation for approximately one year before seeking to compel arbitration. The court determined that the Federal Arbitration Act (FAA) applied to the agreements at issue because they concerned commercial real estate transactions that affected interstate commerce. However, the court found that the plaintiffs’ behavior, including their expressed reluctance to arbitrate when the court viewed their claims unfavorably, demonstrated an intent to forum shop and prejudiced the defendants, leading to a waiver of their right to arbitrate.

    Facts

    Rita Cusimano, along with other family members, were involved in several commercial agreements, including a partnership agreement for Strianese Family Limited Partnership (FLIP), an operating agreement for Berita Realty, LLC, and an agreement for the sale of Rita’s interest in 60 Seaview Corp. These agreements contained arbitration clauses. The Cusimanos initiated a lawsuit against the family’s accountants, alleging fraud and malpractice, and engaged in extensive motion practice and discovery. After a period of litigation and faced with potential dismissal of their case and the court’s negative view of their claims, the Cusimanos demanded arbitration. The defendants moved to dismiss the action and to stay the arbitration claims as time-barred. The trial court found the FAA inapplicable and ruled the Cusimanos had waived their right to arbitration. The Appellate Division reversed.

    Procedural History

    The New York County Supreme Court initially dismissed the plaintiffs’ complaint but allowed them to replead certain causes of action. It later granted the defendants’ motion to stay arbitration based on the statute of limitations, finding the FAA inapplicable and the Cusimanos had waived arbitration. The Appellate Division, First Department, reversed, holding that the FAA applied and the Cusimanos had not waived their right to arbitrate. The New York Court of Appeals granted the defendants leave to appeal and reversed the Appellate Division, finding that the Cusimanos had waived their right to arbitration.

    Issue(s)

    1. Whether the Federal Arbitration Act (FAA) applied to the commercial agreements at issue.

    2. Whether the plaintiffs waived their right to arbitrate by pursuing litigation.

    Holding

    1. Yes, because the agreements concerned commercial real estate transactions that affected interstate commerce, triggering the FAA.

    2. Yes, because the plaintiffs’ conduct in actively litigating the case for an extended period, after being told their case was frivolous and seeking arbitration only when their legal position was threatened, constituted a waiver of their right to arbitration.

    Court’s Reasoning

    The court first addressed the applicability of the FAA. It cited the U.S. Supreme Court’s broad interpretation of the FAA, stating that the FAA applies to agreements that concern transactions