Published on:

#324 Third Department Caselaw Round-Up for March 29, 2012, Part 2 of 11

324 Post 03-29-12, Part 2 Third Department March.pngSometimes even stupid people get lucky (or, maybe, good people merely take pity on them). Also, ever wonder why DOT has random checkpoints? The first case is why.

And while the first case deals with procedural due process rights, the second case deals with both procedural and substantive due process rights.

It’s sort of the Goldilocks approach to jurisprudence: don’t do too little and don’t do too much; try to find a happy medium where things are just right.

324 Post-2 Clinton County.pngCase #193 #103881
People v. Adams
Clinton County-McGill Issues: Criminal Charges; DWI Cited statutes: CPL ยง470.15 Modified

The defendant pled guilty to DWI and other crimes. The defendant should have also pled guilty to the crime of stupidity. Why? Because he was a trucker who stopped en route to purchase an 18-pack of beer, who partially consumed the beer en route, and then was forced to stop at a random DOT checkpoint – and found to be intoxicated. D’oh!

Pursuant to the plea agreement, the defendant was to be sentenced to 1 to 3 years in prison. He also undoubtedly said goodbye to that commercial driver’s license of his. However, at sentencing, the defendant received 1 1/3 to 4 years in prison with a $2,500.00 fine. Say what?

Obviously, the defendant appealed – though he did not move to withdraw his plea (as he most definitely should have!) or vacate the judgment of conviction.

The Third Department had a problem with this case, vacated the sentence, and remitted it back to county court for further proceedings. The court found, in the interests of justice, that this matter had to be returned to the county court. The county court failed to permit the defendant the opportunity to withdraw his plea after the court had specifically told the defendant that it would allow him such an opportunity to do so should the court change the sentence of the plea agreement (as it ultimately did).

Excellent call by the court with regard to the defendant’s procedural due process rights.

Case #194 #511129
In the Matter of Alexis AA.
Clinton Supreme-Lawliss Issues: Best Interests; Change in Circumstances; Custody; Drug Abuse; Mental Illness; Neglect; Permanency Hearing; Visitation Cited statutes: FCA Art. 10-A Modified

The parents shared joint legal custody of two children with primary physical custody of the children granted to the mother. DSS filed a neglect petition against both parents and they both admitted to neglect. As a result, the two children were placed in the custody of their paternal grandparents.

Thereafter, the mother successfully completed “all of the required programs designed to address her substance abuse and mental health issues”. DSS then opted to return the children to the parents in accordance with joint legal custody to the parties with primary physical custody to the mother, a development with which the parents agreed. The court thereafter made a best interests determination that this result should ensue.

But then, for reasons not apparent from the record, the court does something strange: it grants on order of sole legal custody to the mother with visitation to the father. Huh?

Unsurprisingly, the father appealed.

The Third Department found that “the court may not issue a separate custody order determining or modifying the rights of the child’s parents to legal custody absent a specific request for such relief to be made pursuant to Family Court Act article 6.” Furthermore, “before a parent may be deprived of legal custody of his or her child, the parent must be given notice that legal custody is in issue and be afforded an opportunity” be heard.

But, really, all that the court had to do was look to see whether there was a change in circumstances as between parents – since there was not. That stops the analysis right there. “Even if the proper notice is afforded to a parent, an existing order of custody should not be modified absent a showing that there has been a subsequent change of circumstances.”