Family Court Erred in Dismissing Custody Petition Without a Hearing on Extraordinary Circumstances. The Third Department determined that Albany County Family Court erred in failing to hold a hearing to determine if "extraordinary circumstances" exist to support awarding custody to the non-parent petitioner in a Family Court article 6 proceeding. Matter of Liz WW. v Shakeria XX. (NY Slip Op 03888 [5/7/15]). The mother and the petitioner had resided together and had been in a relationship when the mother gave birth to the child in late 2007. Thereafter, the petitioner assumed all parental responsibility for the child and when the couple separated, the mother "consented to an order giving petitioner physical custody and shared legal custody, without prejudice to the father."
The father was incarcerated from 2009 to 2012. On release, he petitioned for a modification of custody and visitation. Without conducting a hearing or admitting evidence, the court gave custody of the child to the father and refused to order visitation for the petitioner. The court then requested papers on "extraordinary circumstances" as required by Matter of Tennant v Philpot (77 Ad3d 1086 [3rd Dept 10/21/10]) and, more recently, Matter of Curless v McLarney (125 AD3d 1193 [3rd Dept 2/26/15]). The petitioner then filed for sole custody when the father was again incarcerated. The court gave custody to the mother with visitation to the petitioner and "thereafter concluded, again without a hearing, that petitioner had not demonstrated extraordinary circumstances" and granted summary judgment for the biological parents. The appellate court, on review of the submissions, as there was no other record, found that "summary judgment was not appropriate" and remitted the matter for further proceedings within 14 days.
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Court of Appeals Update Available from the Center for Appellate Litigation.
The Center for Appellate Litigation's (CAL) most recent Court of Appeals update is now available here. The update contains a list of criminal cases currently pending in the New York Court of Appeals with summaries. The update is done every two months for CAL staff and made available to Chief Defenders who do substantial appellate work. For all others the update is available on their website www.appellate-litigation.org under the resource tab and Court of Appeals Update.
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Information Available on Military Discharges and Their Effects on Benefits. The various types of military discharges and the impact of those discharges are often extremely unclear to the criminal defense or family law attorney representing a veteran. Not only does the nature of the discharge (honorable, general, other than honorable, bad-conduct, court martial, and dishonorable) determine eligibility for various benefits available from the Federal VA, ranging from health care to educational benefits, but it can effect eligibility to enter some veterans courts and other non-VA programs. Veterans with undiagnosed PTSD may have received a less than honorable discharge based upon PTSD-related behavior. Defense attorneys should know that it is possible to upgrade discharges and be familiar with the resources to refer their clients to for an upgrade.
The Cornell University ILR School has just published an article entitled Veterans Benefits: The Impact of Military Discharges on Basic Eligibility. The article is recommended and available as a PDF here. As always, defense counsel who are representing a veteran are urged to contact NYSDA's Veterans Defense Program at 585-219-4862, or firstname.lastname@example.org, with any questions or concerns.
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All-Determinate-Sentencing Legislation Proposed. Adopting the recommendations of the Permanent Commission on Sentencing, Chief Judge Jonathan Lippman has proposed legislation to eliminate all remaining indeterminate sentences and replace them with determinate terms. The bill, which has not yet been formally introduced, would establish separate determinate sentence ranges for: first-time felony offenders (except drug cases, sex crimes and homicide offenses); second felony offenders; and homicide offenses classified as non-violent felonies (e.g. second-degree manslaughter and vehicular manslaughter). Details can be seen on the attached chart.
Under the proposal, non-prison sentences would continue to be available for Class C (with some exclusions), D, and E first non-violent felonies. Judges would have authority to sentence some second felony offenders convicted of Class D and E felonies to local jail or probation upon a finding that a prison sentence would be "unduly harsh." (The proposal excludes non-violent homicide and sex offenses.)
Some non-violent felonies would be reclassified as violent and others would be reclassified at a higher felony grade level. Reclassified from a Class B non-violent felony to a Class C violent felony: second-degree conspiracy, first-degree promoting prostitution, and first-degree tampering with a witness. Elevated from a Class D non-violent felony to a Class C non-violent felony: second-degree tampering with a witness, second-degree intimidating a victim or witness, and aggravated criminal contempt.
Finally, the proposed bill would elevate the commonly-charged crime of first-degree criminal contempt from a Class E non-violent felony to a Class D non-violent felony.
A copy of the proposed bill is available here. A copy of the Sentencing Commission's final report is available here.
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