Respondent lived in Arkansas...cont

May 21, 2015,


Here the boys still require stability. The Court commends the grandparents L.C. and L.C. for stepping in and assisting in caring for the boys. Notably all six boys were legally returned to M.H.S. who received a suspended judgment. Yet the fact remains, and both M.H.S. and the grandparents L.C. and L.C. acknowledge, that the current living situation is evolving. Two of the six boys, M.N. and T.W., are not biologically related to the grandparents L.C. and L.C. or M.H.S. and there was some evidence that Respondent's family in Arkansas may petition for custody. Additionally both M.N. and T.W. express that they want contact with Respondent.
Respondent was the primary caretaker for the boys since their births. This is not a termination of parental rights proceeding, Respondent remains the boys' mother and the goal for this case is "return to parent." While Respondent will be incarcerated for thirteen years and six months (13 1/2 years) when the boys will have reached or will be close to the age of majority, contact between Respondent and the boys will afford them a relationship — albeit not a traditional mother/son relationship (see Matter of Jovan J., 7 Misc 3d 1028[A], 2005 NY Slip Op 50795(U), *2 [2005]). Respondent is currently engaged in mental health treatment and testified that she will commence the other required treatment immediately upon her permanent placement at BH Correctional Facility.4 The boys' therapist did not rule out communication between Respondent and the boys but indicated only the necessity of mental health treatment for Respondent to communicate appropriately with the boys about their situation. The Law Guardian and even Petitioner agree that the issue of visitation could be revisited upon Respondent's completion of treatment. Any visitation would be supervised and any communication between Criminal Respondent and the boys monitored. The Court envisions an on-going check on the progress of the visits and the boys' conditions. The dispositional plan shall be fashioned accordingly.
Dispositional Plan

Petitioner submitted a proposed dispositional plan to the Court which included an order that Respondent:

Have no contact in any form whatsoever with the children [sic] place of business, school, day care or any place they may be found until recommended by the children's therapist in conjunction with [Petitioner] and the Law Guardian. The forms of contact prohibited by this Order shall include, but not be limited to, personal, telephone, letters, notes, video or audio tapes and third party communications.
Page 12

A Court cannot delegate its authority to determine issues involving the best interests of the children to a mental health professional (Matter of Sullivan County Department of Social Services v. Richard "C", 260 AD2d 680 [3d Dept 1999], lv dismissed 93 NY2d 958 [1999]; see also Kathleen M.K. v. Brian S.R., 24 AD3d 1273 [4th Dept 2005]; Hameed v. Alatawaneh, 19 AD3d 1135 [4th Dept 2005]). This Court thus certainly cannot defer its authority to the children's therapist, Petitioner and Law Guardian as detailed in the proposed order of protection. This order of protection shall be stricken in its entirety. In its place Petitioner is ordered to re-draft an order of protection prohibiting contact between Respondent and her step-sons, M.H. and J.H. only.

Petitioner shall also craft a compromise allowing Respondent contact with her biological sons, M.N., T.W., C.H. and N.H.. Respondent is serving a sentence of thirteen years and six months (13 1/2 years) in BH Correctional Facility — located approximately five hours away. M.N., T.W., C.H. and N.H. shall be afforded at least bi-monthly supervised visits with their mother balancing their need and desire to see their mother with the burden on them in making such a long trip (see Davis v. Davis, 232 AD2d 773 [3d Dept 1996]). Respondent and her biological sons likewise shall be permitted written correspondence provided that such correspondence is monitored to ensure its appropriateness.

Respondent must engage in mental health treatment and she should not discuss with her sons what happened until both she and the boys are able to do so in an appropriate therapeutic manner. Respondent is currently engaged in mental health treatment. Respondent shall engage in the other proposed treatment services. Likewise, M.H. and M.N. must continue with therapy. Petitioner shall arrange for T.W. to begin therapy and shall have an assessment performed to determine whether N.H. and C.H. should begin some form of therapy as well.
This decision does not in anyway affect the criminal sentence — including the orders of protection — imposed by County Court. It is Respondent's burden to petition that court for modification.

Now, therefore, it is hereby

ORDERED that the Order of Protection in the proposed dispositional plan is stricken in its entirety; and it is further
ORDERED that an Order of Protection be redrafted as concerning M.H. and J.H.; and it is further
ORDERED that Petitioner shall submit a revised dispositional plan within fifteen (15) days consistent with this decision; and it is further
ORDERED that Petitioner shall arrange for T.W. to begin therapy and shall obtain a professional assessment regarding whether C.H. and N.H. should begin some form of therapy.
Page 14

Pursuant to §1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in Court, thirty-five days from the mailing of the order to the appellant by the Clerk of the Court, or thirty days after service by a party or law guardian upon the appellant, whichever is earliest.
---------------
Notes:
1. M.H.S. eventually consented to a neglect finding and received a suspended judgment. By order entered October 11, 2006, the children were returned to M.H.S. and grandparents L.C. and L.C. currently have extensive visitation with the children from Sunday until Tuesday morning.
2. See Spenser v. Spenser (128 Misc 2d 298, 304-305 [Fam Ct, Queens County 1985]) for an interesting discussion of the complication of conflicting orders of protection issued by other courts as they affect custody and visitation orders issued by family court.
3. Family court later summarily terminated respondent father's parental rights and the Third Department affirmed based again, in part, upon the criminal order of protection and because respondent was not challenging the protective order (Matter of Curtis "N", 302 AD2d 803, 804-805 [3d Dept 2003], lv dismissed 100 NY2d 535 [2003]). The determination was also based on the facts that respondent failed to plan for his children's future and did not take any responsibility for sex crimes abusing his daughter.
4. The Court presumes that Respondent has commenced with the other treatment at this time as the Court dispensed with her presence at the conclusion of this hearing in order for her to return to BH Correctional Facility.
---------------

New York City Housing Authority ...cont

May 21, 2015,


NYCHA's action to terminate Gates' tenancy is progressing conforms with the "Procedures for the Termination of Tenancy" as set forth as Exhibit A to a stipulation of settlement in a Federal class action against NYCHA brought by its tenants, which stipulation was entered as a judgment in such case by the United Stales District Court for the Southern District of New York. See Escalera, supra. As a class action settlement, Escalera binds NYCHA all present and future tenants of NYCHA. The notice given by NYCHA to Gates to commence the proceeding against her tracks the forms expressly prescribed in Exhibit B to the ordered stipulation. The form, however, leaves a blank for the specified criminal charges, expecting that NYCHA will expressly set forth charges in an appropriate manner. In this ease, the specified charges were recited to be:
NON-DESIRABILITY IN THAT:

1. On or about October 25, 2003, Roy King, an unauthorized occupant of your New York City Housing Authority ("Authority") apartment, assaulted you in your apartment, to wit: Roy King cut your hand with a knife causing physical injury, pain and suffering.
BREACH OF RULES AND REGULATIONS IN THAT:

2. In violation of Paragraphs 12(e), 12(q) and I2(r) of your Authority Resident Lease Agreement, you, Gwenda Gates, tenant of record, failed to cause an unauthorized occupant of your apartment to refrain from illegal, immoral or disorderly activity on Authority premises,

3. In violation of Paragraph 5 and/or 12(b) of your Authority Resident Lease Agreement, you, Gwenda Gates, tenant of record, have permitted an unauthorized occupant, Roy King, to take up residence in your Authority apartment since about October 2003, without obtaining prior written consent of your Development's Housing Manager, as required.

There are two separable procedural issues, first, whether the process itself was subject to constitutional infirmities and second, whether the specification of criminal charges was constitutionally infirm.
The process is appropriate. NYCHA is merely following the procedure it is required to
Page 8

follow under the Federal consent order. No decision of this Court could change the consent Order as only the a class action court has jurisdiction to do so. Further any order of this Court which would require NYCHA to change its procedure would subject NYCHA to conflicting mandates. Accordingly, this Court may not fault on NYCHA on the procedures taken by it against Gates in this proceeding. The only way to challenge such procedures, would be for Gates to apply to the Federal Court which issued the consent Order for a modification thereof. The Court has considered the specificity of the charges as set forth in the NYCHA notice to Gates. No vagueness exists; they arc clear and well stated,
Procedural Analysis

Gates had moved pursuant to CPLR Article 78 and CPLR §3001 for an order "declaring that NYCHA's policy of terminating tenants who arc victims of alleged domestic violence is applied in an "arbitrary and capricious manner" and deprives Gates and other tenants similarly situated of their rights under the United States and New York Constitution. Gates contends that this motion is a "hybrid" Article 78 proceeding (See Herman Affirmation in Support of a Preliminary Injunction, ¶ 9), in which Gates seeks a "declaration" that NYCHA's practices unconstitutional termination procedures against tenant victims of domestic violence.

CPLR Article 78 special proceedings afford litigants a method with which to resolve disputes quickly. Article 78 proceedings supereede the common law writs of mandamus, prohibition and certiorari to review, replacing all three of them in a uniform device for challenging the activities of an administrative agency. Gales states that she is "in no way requesting a writ of prohibition," but is seeking a preliminary injunction under CPLR §6301, and
Page 9

is also seeking declaratory judgment under CPLR §3001. NYCHA contends that Gates, by using the special proceeding mechanism, is seeking prohibition, which they contend is an improper remedy here.

To Be Cont...

Theodore Johnson violently attacked his ex-girlfriend...cont

May 21, 2015,

On the People's appeal, we are asked to determine whether the evidence was legally sufficient to support criminal defendant's conviction for endangering the welfare of a child when his actions were not specifically directed at the children. The People contend that the statute is written broadly enough to cover conduct directed at others that is likely to cause harm to children. Under the facts of this criminal case, we agree.

Penal Law § 260.10 (1) provides that a person endangers the welfare of a child when "[h]e knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." Actual harm to the child need not result for criminal liability; it is "sufficient that the defendant act in a manner which is likely to result in harm to the child, knowing of the likelihood of such harm coming to the child" (People v Simmons, 92 NY2d 829, 830 [emphasis added]).

Nothing in the statute restricts its application solely to harmful conduct directed at children (see, People v Bergerson, 17
[95 N.Y.2d 372]

NY2d 398, 401 [noting that the prior version of statute was intended to be broad in scope]). The statute is broadly written and imposes a criminal sanction for the mere "likelihood" of harm. Moreover, the language provides that defendant "knowingly" act in such a manner, further suggesting that the statute does not require that the conduct be specifically directed at a child; rather, a defendant must simply be aware that the conduct may likely result in harm to a child, whether directed at the child or not (see, Penal Law § 15.05 [2]).

Defendant would rewrite the statute. We have previously noted that when a statute imposes criminal liability for knowingly disregarding a risk, it does not require a particular outcome or actions aimed at a specific individual; the crime is solely defined by the risk of injury produced by defendant's conduct (see, People v Davis, 72 NY2d 32, 36-37). The same can be said here. Endangering the welfare of a child is not defined by specifically targeted acts or individuals, but by conduct which a defendant knows will present a "likelihood" of harm to a child (i.e., with an awareness of the potential for harm).

We reject defendant's contention that applying the statute to conduct not specifically directed at children will result in a wild proliferation of prosecutions based on bad parenting or the exposure of children to inappropriate behavior. Here, defendant's conduct could hardly be characterized as bad parenting—or indeed parenting at all. Moreover, the statute has been in place for over 30 years. The Legislature specifically recognized that behavior that was likely to produce harm to a child's physical, mental or moral well-being fell within its sweep as long as the defendant was aware of its potential for harm to a child. The Legislature's response to conduct that could cause harm to children has not produced a clarion call for legislative reform of the statute; we will not supplant that function by judicial stitchery.

The adverse effects of domestic violence on children have been well documented over the past two decades and have been recognized by all branches of our government in New York.1 In 1996, the Governor approved an act to amend the Domestic Relations Law and the Family Court Act to require
[95 N.Y.2d 373]


To Be Cont...

Relations Law § 70 [a]; Eschbach v Eschbach, 56 NY2d 167, 171 [1982])

May 21, 2015,

56 A.D.3d 676
868 N.Y.S.2d 226
2008 NY Slip Op 09085
In the Matter of DAVID ROLON, Respondent,
v.
JENNIFER MEDINA, Appellant.
2007-08320
Appellate Division of the Supreme Court of the State of New York, Second Department.
November 18, 2008.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Negron, J.), dated August 17, 2007, which, after a hearing, granted the criminal petition and awarded sole legal and residential custody to the father.

Ordered that the order is affirmed, without costs or disbursements.

"It is axiomatic that custody determinations are to be made upon consideration of all relevant circumstances to reach the disposition that promotes the best interests of the child" (Matter of Wecker v D'Ambrosio, 6 AD3d 452, 453 [2004]; see Domestic
[56 A.D.3d 677]

Relations Law § 70 [a]; Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). The weighing of the various factors relevant to a custody determination "requires an evaluation of the testimony, character and sincerity of all parties involved in this type of dispute. Generally, such an evaluation can best be made by the trial court which has direct access to the parties and can supplement that information with whatever professionally prepared reports are necessary" (Eschbach v Eschbach, 56 NY2d at 173). Thus, "[w]here a hearing court has conducted a complete evidentiary hearing, its finding must be accorded great weight, and its grant of custody will not be disturbed unless it lacks a sound and substantial basis in the record" (Matter of Oates v Wilson, 46 AD3d 904, 905 [2007], quoting Matter of Brian S. v Stephanie P., 34 AD3d 685, 686 [2006]; see Miller v Pipia, 297 AD2d 362, 364 [2002]; Young v Young, 212 AD2d 114, 117 [1995]).

The evidence supports the conclusion of the court-appointed evaluator, that the father had always been the primary caretaker of the child and that he, in contrast to the mother, always placed the child's needs first. The attorney for the child also took the position that the father placed the child's needs first.

"While it is true that the recommendations of court-appointed experts are but one factor to be considered in making any custody determination and are not determinative . . . such recommendations are entitled to some weight . . . unless such opinions are contradicted by the record" (Young v Young, 212 AD2d at 118 [internal quotation marks and citations omitted]; see Rosenberg v Rosenberg, 44 AD3d 1022, 1024-1025 [2007]; Matter of Kozlowski v Mangialino, 36 AD3d 916, 917 [2007]). Contrary to the mother's contention, the recommendation and opinion of the forensic expert are not contradicted by the criminal record.

With regard to the mother's allegations of domestic violence, the record provides ample support for the Family Court's determination that the mother was not credible. Indeed, every professional who came into contact with the mother reached the same conclusion.

Since the Family Court's determination has a sound and substantial basis in the record, it will not be disturbed (see Eschbach v Eschbach, 56 NY2d at 173; Matter of Oates v Wilson, 46 AD3d at 905; Matter of Brian S. v Stephanie P., 34 AD3d at 686; Miller v Pipia, 297 AD2d at 365; Young v Young, 212 AD2d at 117).

SKELOS, J.P., ANGIOLILLO, BALKIN and CHAMBERS, JJ., concur.

Respondent lived in Arkansas...cont

May 20, 2015,


"Denial of visitation to an incarcerated parent is a drastic remedy and should only be done where there are compelling reasons . . . and . . . substantial evidence that such visitation is detrimental to the child's welfare" (Lonobile v. Betowski, 261 AD2d at 829, after remand 295 AD2d 994 [emphasis added]). In Lonobile, the Criminal Court remitted the case to family court for a determination whether visitation would be detrimental to the child. Family court upon remittal did determine that visitation would be detrimental — but only after specific testimony from a clinical psychologist that no good would come from visitation and that any relationship should be developed in a supervised therapeutic manner. The propriety of visitation is generally left to the sound discretion of family court whose findings are accorded deference and will remain undisturbed unless lacking a sound basis in the record (Matter of Edward S. v. Moon, 7 AD3d 834, 836 [3d Dept 2004]). Like in Lonobile (261 AD2d 829), courts prohibiting visitation with an incarcerated parent do not rely on incarceration alone but instead upon "substantial proof" that visitation would be harmful to the children or not in the children's best interests (Headsail v. Headsail, 249 AD2d at 853 [where imprisoned father attempted to kill child's mother in child's presence]; La Rue v. Crandall, 254 AD2d at 635 [where children expressed a clear desire to have no contact with imprisoned criminal parent and there was evidence of inappropriate communication from parent to children]; Badger v. Murray, 283 AD2d 695, 695-696 [where during one of three prison visitations imprisoned parent struck child in his face and parent failed to establish a meaningful relationship with child]; Cook v. Morales, 275 AD2d 938 [where a court-appointed therapist recommended that visitation with imprisoned parent not take place]; Davis v. Davis, 232 AD2d 773; Mohammed v. Cortland County Department of Social Services, 186 AD2d 908 [where both counselors and a child psychologist testified that visitation with imprisoned parents would be harmful]).

In Matter of Edward S. (7 AD3d at 837), the Court credited testimony from a social worker and caseworker with the county mental health clinic who both opined, based upon evaluations of the children, that visitation would be harmful. Both testified that because the children were doing well in their new foster homes that visitation would potentially undermine the children's sense of stability. Unlike that case, M.N., T.W., C.H. and N.H. do not have such a sense of stability.

Here, Petitioner has failed to offer substantial proof that visitation would be harmful to Respondent's biological sons or that visitation is not in their best interests. Krehling testified that during the more than 30 visits that C.H. and N.H. had with Respondent that the boys were initially timid toward Respondent and both pulled her hair and hit her. There was no testimony
Page 10

that this is unusual behavior for an infant and toddler — both under three years old — in a setting in which the boys were separated from their mother by a glass partition. Although Krehling was also told by the former daycare provider that the visits caused the boys to act out, there was no evidence linking the aggressive behavior to the visits. While M.N.'s therapist told Krehling that he did not recommend contact between Respondent and the boys, Krehling admits that such recommendation was based upon information received from the grandparents L.C. and L.C.. The parents of M.H.S.'s former wife and Respondent have an understandably strained relationship. The therapist never even met T.W., C.H. or N.H. and M.N., in fact, told the therapist that he would like to visit with Respondent.

To Be cont...

New York City Housing Authority ...cont

May 20, 2015,

The Court will first address this second contention. Clearly, NYCHA cannot use race as a basis upon which to make decisions to evict, The courts have the obligation to consider such a claim carefully, and to make searching inquiry into air appropriate allegation of discrimination. Yet, the Court should not countenance an improper invocation of a charge of race discrimination to prevent or delay the orderly functioning of government criminal procedures. In reading the presentation of Gates' counsel, this Court was struck by the equivocal and imperfect phrasing and presentation of the discrimination claim, especially in view of the care and quality of the remainder of criminal counsel's submission in this matter.

Neither Counsel's statement on its face nor any other material Gates submitted in support offers statistics as to how many practitioners were actually contacted and whether they represented a fair and statistically meaningful cross section of eviction eases, or whether the practitioners contacted handled eases in projects where there were a significant number of white victims of domestic violence. Similarly, no information on the relative member of black or white tenants has been presented, or any indication as to the relative prevalence of domestic violence in the two groups.

Finally, the comparison made is linguistically a comparison of apples and oranges,
Page 6

comparing "eviction proceeding, brought against white female victims of domestic violence for incidents of domestic violence" against "minority women who were terminated for non-desirability and breach of authority rules and regulation after having suffered domestic violence assaults." The allegations are themselves insufficient for this Court to proceed further on this issue in this case.

At a hearing on this petition, Gates' counsel further explained that the allegation was based on inquiry with other legal providers which has "come back with some four or five cases" and that his "office had a previous one, four or live years ago — and all of the victims of domestic violence were Hispanic or black." This, it asserted "suggests that perhaps there is an intentional discriminatory policy which would violate the [equal] protection laws of the 14th Amendment."

At the hearing, NYCHA presented its statistics that of the entire New York City public housing population, 5.8% of the heads of household arc white and 4.7% of the residents are white. Thus, assuming domestic violence has an equal distribution of incidence between white and non-white NYCHA tenants, there would be about 19 instances of non-white victims of domestic violence for each white victim of domestic violence. Accordingly, the six eases cited, even if sampled correctly, cannot by itself establish any meaningful statistical indication of racial discrimination. Gates admits that she had no direct knowledge or other basis to charge racial discrimination on these evictions, This assertion is therefore so devoid of a basis as to verge on the frivolous, and be a playing of the "race card" to delay and obstruct the proper management of NYCHA properties. The Court therefore rejects this assertion of Gates.

Turning to Gates' first contention, the Court notes that the procedure under which
Page 7


To Be Cont...

MASTRO, J.P., DILLON, ENG and BELEN, JJ., concur.

May 20, 2015,

54 A.D.3d 883
864 N.Y.S.2d 111
2008 NY Slip Op 7024
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
RICHARD TIMMONS, Appellant.
No. 2000-03919
Appellate Division of the Supreme Court of the State of New York, Second Department.
September 16, 2008.
[54 A.D.3d 884]

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered April 4, 2000, convicting him of murder in the first degree (three counts), and aggravated criminal contempt, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress his statements to law enforcement authorities and physical evidence.

Ordered that the judgment is affirmed.

The counts of the indictment charging the defendant with murder in the first degree were not duplicitous, as each of the counts charged the defendant with a single crime (see CPL 200.30 [1]; Penal Law § 125.27 [1] [a] [viii]). Nor were the counts of the indictment charging the defendant with murder in the first degree multiplicitous. The same sex crimes was not charged in more than one of the counts (see People v Saunders, 290 AD2d 461 [2002]; People v Taylor, 190 Misc 2d 124 [2002]).

The Supreme Court properly denied those branches of the defendant's omnibus motion which were to suppress his statements to law enforcement authorities and physical evidence. The police were confronted with an emergency situation in which there was an immediate need for their assistance for the protection of life, the search was not motivated by an intent to arrest and seize evidence, and there was a reasonable basis, approximating probable cause, to associate the emergency with the area to be searched (see People v Mitchell, 39 NY2d 173 [1976], cert denied 426 US 953 [1976]; People v Desmarat, 38 AD3d 913, 914-915 [2007]). In this case, the police were investigating a report of an assault in progress. Notwithstanding the repeated knocking at the door of the subject apartment by the police, no one responded. Moreover, the police heard the sound of either a television or a stereo being raised and lowered, indicating that someone was in the subject apartment. Accordingly, the subsequent action by the police in forcibly opening the door of the apartment did not warrant the suppression of evidence.

Moreover, the Supreme Court correctly determined that the
[54 A.D.3d 885]

defendant's statements were voluntarily made, despite the fact that he was experiencing pain from an injured wrist (see People v Hughes, 280 AD2d 694, 695 [2001]; People v Ragin, 224 AD2d 642 [1996]). The credibility determinations of the Supreme Court, which saw and heard the witnesses at the suppression hearing, are entitled to great weight on appeal, and will not be disturbed unless they are unsupported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Stevens, 44 AD3d 882 [2007]). The determination of the Supreme Court that the defendant's statements were made voluntarily has ample support in the record.
The Supreme Court correctly permitted the prosecutor to present evidence of the defendant's prior conviction of crimes involving domestic violence committed against his wife, who was one of the murder victims. The criminal evidence was introduced to establish the defendant's motive, relevant background information to assist the jury in understanding the relationship between the defendant and his wife, and to explain why an order of protection had been issued (see People v Alvino, 71 NY2d 233, 242 [1987]; People v Molineux, 168 NY 264, 297-305 [1901]; People v Westerling, 48 AD3d 965 [2008]; People v Wlasiuk, 32 AD3d 674, 676-677 [2006]; People v James, 19 AD3d 616 [2005]).

The defendant's contention that the verdict of guilt is not supported by legally sufficient evidence is unpreserved for appellate review, as he specifically declined to move to dismiss the charges at the close of the prosecution's evidence and at the end of the case (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). We note that the prosecution was not required to prove the defendant's motive for committing the murders, as motive is not an element of the crime of murder (see People v Caban, 5 NY3d 143, 154 [2005]).

The defendant's intent to commit the murders may be inferred not only from his conduct, but by the surrounding circumstances (see People v Smith, 35 AD3d 635 [2006]).
[54 A.D.3d 886]

The defendant's contention that his statements were obtained in violation of his right to counsel is unpreserved for appellate review (see CPL 470.05 [2]) and, in any event, cannot be determined on this record.

The defendant's contention regarding jury selection is without merit. The defendant's remaining contentions are unpreserved for appellate review (see CPL 470.05 [2]), and in any event, are without merit.

MASTRO, J.P., DILLON, ENG and BELEN, JJ., concur.

Theodore Johnson violently attacked his ex-girlfriend...cont

May 20, 2015,

95 N.Y.2d 368
740 N.E.2d 1075
718 N.Y.S.2d 1
THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellant,
v.
THEODORE JOHNSON, Appellant-Respondent.
Court of Appeals of the State of New York.
Argued September 13, 2000.
Decided October 26, 2000.
[95 N.Y.2d 369]
Rachel Alstein, New York City, and Lynn W.L. Fahey for appellant-respondent.
Richard A. Brown, District Attorney of Queens County, Kew Gardens (John M. Castellano and Gary Fidel of counsel), for respondent-appellant.
[95 N.Y.2d 370]
Rebecca J. Fialk, White Plains, Audrey E. Stone, Victoria L. Lutz and Jennifer Brown for Pace Women's Justice Center, amicus curiae.
Gary Muldoon, Rochester, for New York State Association of Criminal Defense Lawyers, amicus curiae.
Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK and ROSENBLATT concur.
OPINION OF THE COURT
WESLEY, J.

On March 7, 1997, criminal defendant Theodore Johnson violently attacked his ex-girlfriend Vanessa Parker as she walked home from the supermarket with her three daughters. Defendant approached Parker and struck her in the back of the head, knocking her against a fence. The baby carriage Parker was wheeling, carrying their child, was also knocked over. Parker's two older children, 7 and 12 years old, immediately began to cry. Defendant yelled and cursed at Parker about previously putting him in jail (Parker already had an order of protection against criminal defendant in connection with a prior harassment incident). He grabbed her by the back of the neck, dragged her to her apartment entrance, ordered her to unlock the apartment and knocked her head against the door.

Parker's 12-year-old daughter picked up the baby carriage and the children followed them inside. Once inside, defendant pushed Parker up the steps into the apartment, again causing her to fall. He continued his cursing, telling her that he would "leave [her] in the house for dead" and then she would "see
[95 N.Y.2d 371]

how [her] children would like being motherless." After entering the apartment, the children went directly to their bedroom. Defendant followed Parker into the living room, and continued to beat her with his hands, feet and a metal pipe. Defendant also threw cups, plates and glasses at the walls and at Parker. He continued his verbal abuse, cursing and yelling at Parker for calling the police about past incidents of abuse. Trapped in their room, the children could hear the glass breaking, Parker's screams and defendant's yelling. Defendant's reign of terror lasted for over 10 hours. Parker was finally able to sneak out of the apartment and call the police. Only after defendant's arrest did the children emerge from the bedroom, where they were exposed to broken glass and debris strewn around the living room. Later, when defendant was in jail awaiting trial, he threatened to beat Parker if she did not drop the charges against him.

After a nonjury trial, defendant was convicted of two counts of endangering the welfare of a child, intimidating a victim or witness, menacing and a number of felonies related to the order of protection. With regard to the felonies, Supreme Court sentenced defendant as a second felony offender. The Appellate Division modified the judgment by reversing defendant's convictions for endangering the welfare of a child, holding that the evidence was legally insufficient, while sustaining defendant's second felony offender adjudication. A Judge of this Court granted both the People and defendant leave to appeal.


To Be Cont...

Respondent lived in Arkansas...cont

May 19, 2015,

Pursuant to this Court's order N.H. and C.H., M.H.S. and Respondent's biological sons — who were respectively one and two years old — had weekly visitation with Respondent in the general visiting open area of the local jail from October 2005 until May 2006 when County Court issued the orders of protection — more than 30 visits. Krehling testified that the visits were supervised by a woman named Lori (she did not know Lori's last name) and that she personally supervised only one visit. She stated that the visits did not go well but admits both that the visits were never ended early nor was there any inappropriate interaction between Respondent and the
Page 4

boys. Krehling was told that during the visits N.H. and C.H. did not reach for Respondent and warmed to her "only a little bit," instead clinging to the visitation worker. Respondent explained however that the visits occurred at a table where she was separated from the visitation worker and boys by a glass, eye-level partition and the boys had to be lifted up and over the partition to come to her. Krehling was also told that during visitation the infant and toddler hit and pulled Respondent's hair. Respondent testified to the contrary that although the boys were timid at first, they warmed to her and together they laughed, played and sang songs. During these proceedings, this Court also ordered a representative from the law guardian's office to monitor the visitation. A representative observed one visit in October 2005 and reported that while C.H. was at first hesitant to go to Respondent, he eventually warmed to her. The visit was otherwise unremarkable.

From the onset of the visits until September of this year, C.H. and N.H. attended T.B. Daycare Center full time. Krehling testified that she spoke with a former daycare provider once in September and was told that C.H. and N.H. became more aggressive after visiting with Respondent but with time the boys' aggressive behavior lessened. The daycare provider also told her that after the visits ended the boys acted up only once or twice a week compared with daily. Yet, Krehling admits both that the young boys do not receive counseling and there was never a diagnosis to link the boys' aggressive behavior to visitation with Respondent. Krehling never spoke with anyone from the boys' current daycare center.

Respondent's eldest son, M.N., attends counseling with a therapist who is a certified social worker. Krehling recently spoke with the therapist twice on the telephone and he informed her that he does not currently recommend visitation — or any form of communication — between Respondent and any of the boys. According to Krehling, the therapist believes that Respondent must be engaged in mental health treatment to appropriately discuss the family's situation with the boys. Krehling admits that the therapist's assessment is based only on what both she and grandparents L.C. and L.C. told him, as he never even met T.W., C.H. or N.H.. M.N. in fact told the therapist that he wants to see his mother but he is conflicted about his anger. Disconcertingly, now five-year-old T.W. has never engaged in counseling and has had no visits with Respondent. He is currently living with M.H.S. and the Grandparents L.C. and L.C., although not biologically related to them. The Law Guardian confirmed too that, like M.N., T.W. would like to visit with his mother.

Respondent testified that she will cooperate with Petitioner and comply with all services recommended in the proposed dispositional plan. She has already attempted to engage in services but because she was held temporarily in a local jail during the pendency of these legal proceedings she was able to begin only mental health treatment. She testified that once in her permanent correctional facility, she will fully engage in anger management, domestic violence and parenting classes. She hopes to see her sons — or, in the least to call and write them — to let them know that she loves them. Eventually Respondent would like to see her sons placed with her sister or father in Arkansas. No custody petition was filed at the time of this decision.
Statement of Law:

Criminal Orders of Protection and Visitation
Despite Respondent's criminal conviction and the criminal orders of protection prohibiting Respondent from contact with any of her sons for sixteen (16) years — when all of the
Page 6

boys will have reached the age of majority — this Court is required to hold a hearing to determine what disposition is in the boys' best interests (Matter of Michael V., 83 NY2d 178 [1994]). In Matter of Michael V., the court held that family court erred in failing to hold a dispositional hearing for respondent father who was convicted in criminal court of 15 acts of sodomy: "By dispensing with a dispositional hearing, family court limited its ability to make an informed judgment as to the need for alternative or additional dispositional remedies in the children's best interests." Matter of Michael V. was remitted to family court and in a later decision after family court reissued an order of protection barring any contact between father and children but again failed to hold a dispositional hearing, the Appellate Division, Second Department again remitted the matter: "At a minimum, the court should have requested a report from the children's therapists attesting to their status. . . a careful, current assessment of the children's condition and needs must be made" (Matter of Michael V., 219 AD2d 713 [2d Dept 1995]). Similarly, here, despite the criminal orders of protection, this Court must address the boys' individual needs (see also Matter of Dominique A.W., 17 AD3d 1038 [4th Dept 2005], lv denied 5 NY3d 706 [2005] [a law guardian should present and advocate a specific dispositional plan to the court and, where appropriate, apprise the court of the children's individual wishes]).

As outlined in People v. Roselle (84 NY2d 350, 357 [1994]), a child protective proceeding can take place in family court while a criminal prosecution goes forward arising out of the same conduct because of the different purposes of the courts, different standards of proof and dispositional alternatives. The desired end of the article 10 proceeding is to ensure the expeditious protection of the children's welfare, not to punish Respondent (People v. Roselle, 84 NY2d at 357). This Court may consider the criminal orders of protection but its determination is not bound by them — in fact, it would be error to consider only such orders — instead this Court must consider all factors affecting the boys' best interests.2
The only case on point where a court confronted the issue of visitation in a family court proceeding after a criminal order of protection was already in place is Matter of Curtis "N" (288 AD2d 774 [3d Dept 2001], lv denied 97 NY2d 610 [2002]). There, family court did not permit respondent father visitation with his children but based its determination not only on respondent's incarceration and the criminal order of protection, but also on a summary and assessment of respondent who had sexually abused his daughter.3 Indeed, incarceration and an accompanying
Page 8

criminal order of protection are important factors to consider but there are others. The Court in Matter of Curtis "N" (288 AD2d 774 [3d Dept 2001], lv denied 97 NY2d 610 [2002]) relied on a line of Family Court Article 6 (custody/visitation) cases finding that incarceration alone does not render visitation with the imprisoned parent inappropriate (Badger v. Murray, 283 AD2d 695, 695-696 [3d Dept 2001]; La Rue v. Crandall, 254 AD2d 633, 634 [3d Dept 1998]; Headsail v. Headsail, 249 AD2d 853 [3d Dept 1998], lv denied 92 NY2d 809 [1998]; see also Cook v. Morales, 275 AD2d 938 [4th Dept 2000]; Lonobile v. Betkowski, 261 AD2d 829 [4th Dept 1999], after remand 295 AD2d 994 [4th Dept 2002]; Davis v. Davis, 232 AD2d 773 [3d Dept 1996]; Mohammed v. Cortland County Department of Social Services, 186 AD2d 908 [3d Dept 1992], lv denied 81 NY2d 706 [1993]).


To Be Cont...

New York City Housing Authority ...cont

May 19, 2015,


Because tenants of NYCHA housing have deeply subsidized rents for apartments of a quality and value far above that available to them in the market, resulting in a high demand and long waiting list for NYCHA apartments, such tenants are loath to surrender their apartment and accordingly, actions by NYCHA to terminate a tenant's lease have led to much litigation. The criminal cases establish in detail how the termination process is to work, both in establishing what constitutes substantive grounds for termination and regulating the procedures required to terminate a tenancy.

The present "state of the art" procedures followed by NYCHA in their proceedings are based upon a class action settlement in a federal lawsuit. See Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970); Tyson-Randolph v. NYCHA, 74 Civ. 1856 (SDNY 1975). The stipulation of settlement in such cases has established forth in detail procedures and criteria to be used and applied in eases where NYCHA wishes to terminate a tenancy for non-desirability, especially as it relates to the acts or behavior of non-tenant relatives or invitees of a tenant.

Gates, in this proceeding, does not challenge in concept that NYCHA may terminate a
Page 4

tenant for "undesirability," but challenges instead the present "specific criteria and definitions of non-desirability' in the context of her case and whether NYCHA uses appropriate guidelines and criteria for deciding which tenancies NYCHA seeks to terminate. Gates also claims that NYCHA has, in a, claiming the choice of tenants whose tenancy the NYCHA selects to terminate is made inter alia on a racially biased basis in the context of her criminal case.

Gates' first assertion is based on her claim that she is a "battered woman," and that accordingly, the usual procedures applied by NYCHA to evict undesirable tenants cannot be applied to her. NYCHA, on the other hand, counters that, even if Gates is a battered woman, she cannot escape her obligations to act to avoid violence in her apartment.

The record shows that Gates has been a victim of domestic violence inflicted by King. Although Gates alleges she is also a "battered woman," such assertion has not yet otherwise been established as in the record. A "battered woman" is a female victim of domestic violence who has been so adversely impacted by her battering that she is unable to extricate herself from the relationship or respond appropriately, Gates alleges she is such a victim, and thus being incapable of action, must be excused from certain consequences to which a non-battered woman might be subject. In this case, Gates seeks to be excused from taking those steps, which a non-battered woman in similar circumstances would be required to take, to exclude King from the apartment, as a condition of avoiding the termination of her tenancy. Not only does the record not establish that Gates is a battered woman, it docs not establish, even if she were, her ability or capacity or lack thereof, to take action to exclude King from the apartment.

Gates also asserts that NYCHA's decision to proceed against her was made in a racially biased manner in that she is African American and that Gates' counsel "has made legal inquiry
Page 5

practitioners in all of the branch offices in the five boroughs in the City of New York that handle Authority victim proceedings," and that "[n]one of the practitioners contacted reported cases of eviction proceedings brought against while female victims of domestic violence, for incidences of domestic violence, however the inquiry yielded multiple instances where the tenancies of minority women were terminated for non-desirability and breach of Authority rules and regulations after having suffered domestic violence assaults,"


To Be Cont...

n August 2003 a child was born to the petitioner father and the appellant mother

May 19, 2015,

39 A.D.3d 631
833 N.Y.S.2d 613
2007 NY Slip Op 03132
In the Matter of TARIK R. BEY, Respondent,
v.
VIRGINIA PEREZ, Appellant.
2006-07892.
Appellate Division of the Supreme Court of the State of New York, Second Department.
Decided April 10, 2007.

In a proceeding pursuant to Family Court Act article 6, which was heard in the Supreme Court (see 22 NYCRR 41.1), the mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Morgenstern, J.), dated August 16, 2006, as denied those branches of her motion which were to vacate two orders of the same court, both dated August 1, 2006, entered upon her default in appearing or answering, transferring custody of the parties' child to the father and suspending the father's child support obligation pending the mother's return to New York, respectively.

Ordered that the order dated August 16, 2006 is reversed insofar as appealed from, on the law, without costs or disbursements, those branches of the motion which were to vacate the orders dated August 1, 2006 are granted, and the matter is remitted to the Supreme Criminal Court, Queens County, for further proceedings before a different justice in accordance herewith.

In August 2003 a child was born to the petitioner father and the appellant mother. In March 2004, after mutual allegations of domestic abuse, the parties agreed that the mother would have custody of the child and the father would have visitation. On March 22, 2004 an order was entered to that effect. In December 2005 the father commenced this proceeding alleging that the mother had fled to Puerto Rico with the child and that he had been denied his visitation. The mother appeared on the petition by her attorney. The Supreme Court issued a warrant for her arrest, directed her attorney to contact her by telephone, and adjourned the matter. On the adjourned date, the mother appeared again by her attorney. Counsel asserted, inter alia, that the mother had fled to Puerto Rico because of continued domestic violence and threats by the father, and that the mother opposed the father's petition but had been unable to either timely answer or appear due to severe financial constraints and the limitations of technology in the area where she was living.
[39 A.D.3d 632]

The court, finding the mother in default, issued two orders that same day. The first transferred custody of the child to the father, and the second suspended the father's child support obligation pending the mother's return to New York. The criminal court denied requests by the mother's counsel, inter alia, to permit the mother to appear by telephone and for a hearing. In the order appealed from, the Supreme Court, inter alia, denied those branches of mother's motion which were to vacate the orders entered upon her default. We reverse insofar as appealed from.

Initially, we disagree with the Supreme Court's conclusion that the mother defaulted on the petition (see CPLR 321; Matter of Kindra B., 296 AD2d 456 [2002]; Matter of Tyrell M., 283 AD2d 500 [2001]). In any event, even if the mother had defaulted, in support of her motion to vacate her default, the mother demonstrated both a reasonable excuse for the default and a meritorious defense (see Domestic Relations Law § 75 [2]; § 240 [1]; Matter of Wissink v Wissink, 301 AD2d 36 [2002]). Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the mother's motion to vacate the orders entered on her default.

Consequently, we remit the matter to the Supreme Court, Queens County, for further proceedings before a different justice. Such proceedings should include a determination of whether the Supreme Court has exclusive, continuing jurisdiction over issues of custody and/or visitation (see Domestic Relations Law § 76-a), and, if so, whether such jurisdiction should be exercised on the facts presented (see Domestic Relations Law § 76-f). If such jurisdiction is found and exercised, the court is to determine how best to proceed in order to reach a determination on the merits (see Domestic Relations Law art 5-A; DeJac v DeJac, 17 AD3d 1066 [2005]).

The mother's remaining contentions on appeal need not be reached in light of our determination.
Miller, J.P., Mastro, Ritter and Balkin, JJ., concur.

Plaintiff-husband filed a summons with notice in Supreme Court

May 19, 2015,


689 N.Y.S.2d 357
180 Misc.2d 394, 1999 N.Y. Slip Op. 99,178
Syed AHMED, Plaintiff,
v.
Humera H. AHMED, Defendant.
Supreme Court, Nassau County, New York.
March 12, 1999.
Page 358
Peter Panaro, Massapequa, for plaintiff.
Warren M. Burd, Hempstead (Steven J. Homayoon of counsel), for defendant.
ZELDA JONAS, J.

The following constitutes a decision of the husband's opposition to the issuance of the temporary order of protection and the wife's application inter alia to convert the temporary order of protection to a permanent order of protection.

Procedural History

The parties were married at a civil ceremony in New York on June 18, 1998. The parties are Sunni Muslim, and the marriage was arranged between the families. The religious ceremony was performed on July 10, 1998. The wife, who is the criminal defendant in the divorce proceeding, left the marital residence within 48 hours of the religious ceremony and never returned.

Plaintiff-husband filed a summons with notice in Supreme Court on July 29, 1998 to annul the marriage based upon fraud. Defendant-wife filed a verified answer and counterclaim dated November 6, 1998 seeking a divorce upon the grounds of cruel and inhuman criminal treatment. The defendant-wife's counterclaim contains allegations which, if true, may rise to the level of spousal abuse. In addition, the wife counterclaims for money damages in the sum of $21,000 for plaintiff's failure to abide by a religious wedding contract, referred to as a "Mehr agreement," defendant's share of the wedding gifts, monies expended by defendant's family for a "lavish" wedding, return of defendant's jewelry, and the award of counsel fees.

In regard to defendant-wife's allegations of suffering, abuse, and violence by her husband on their wedding night, defendant filed a petition for an order of protection in the Court of Common Pleas in Delaware County, Pennsylvania, on August 20, 1998. The petition was withdrawn by the defendant-wife on September 17, 1998, and the Court issued an order stating that the withdrawal was with prejudice to the petitioner. Defendant-wife had also filed a criminal complaint against the plaintiff-husband for the crime of Harassment in
Page 359

the Court of Common Pleas of Delaware County, Pennsylvania. A preliminary hearing was held before the Hon. Vincent D. Gallagher, Jr. on December 7, 1998. The defendant-wife appeared pro se, while the plaintiff-husband was represented by counsel. The Hon. Vincent D. Gallagher, Jr., dismissed the criminal complaint since the defendant failed to prove a prima facie case that a crime was committed and that the husband had committed the crime charged. Defendant-wife obtained an order of protection in Family Court in Queens County, New York, on September 21, 1998 which was subsequently dismissed by that Court on December 10, 1998 since a matrimonial proceeding was pending in Supreme Court, Nassau County, before the Hon. Joseph Goldstein. The next day, December 11, 1998, the defendant-wife submitted an order to show cause ex parte to the Supreme Court, Nassau County, requesting a temporary order of protection against the plaintiff-husband, which was assigned to Justice Cozzens due to the unavailability of Justice Goldstein. The affidavit by the wife in support of the order to show cause contained substantially, in sum and substance, the same allegations of abuse and domestic violence averred in the counterclaims. In addition, the defendant-wife claimed that plaintiff-husband had violated a previous temporary order of protection without making reference to the date issued and the name of the court and judge who issued the order.

To Be Cont...