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Manhattan Appeals Court Revives Kelly Gunn’s Custody Lawsuit Against Circe Hamilton

Posted on: July 2nd, 2018 by Art Leonard No Comments

A five-judge panel of the New York State Appellate Division, First Department, based in Manhattan, has revived a lawsuit by Kelly Gunn, who is seeking joint custody of a child adopted by her former partner, Circe Hamilton. New York Supreme Court Justice Frank Nervo had dismissed the lawsuit on April 13, 2017, finding that despite her close relationship with the child, Gunn was not a “parent” under New York’s Domestic Relations Law, so lacked “standing” to sue for custody or visitation.  But the appellate court unanimously ruled on June 26, 2018, in an opinion by Justice Judith J. Gische, that Gunn should have another chance to call upon the equitable powers of the court to recognize her relationship with the child.  In re K.G. v. C.H., 2018 WL 3118937, 2018 N.Y. App. Div. LEXIS 4617, N.Y. Slip Op 04683.

This is just the latest of a series of opinions dating back more than a quarter century, grappling with the question of when the courts should recognize parental standing where an unmarried same-sex couple was raising a child together, broke up, and the birth or adoptive parent resisted their former partner’s attempt to continue in a parental role with the child.

In 1991, the highest New York court’s answer to the question was “never,” in the case of Alison D. v. Virginia M. The Court of Appeals said then that only a person related to the child by blood or adoption could have standing to seek custody or court-ordered visitation, giving a narrow interpretation to the word “parent” as used in the statute, which did not itself define the term.  Then-Chief Judge Judith Kaye wrote a dissent that was widely quoted by courts in other states as they adopted legal theories to allow these “second parents” to sue for custody or visitation rights.  Judge Kaye argued that the court’s decision failed to take account of the reality of non-traditional families, including those headed by LGBT couples, and would ultimately be harmful to the best interests the children, which courts would be precluded from considering if “second parents” did not have standing to bring the cases.

But the New York appellate courts stood firmly opposed to allowing such lawsuits until August 2016, when the Court of Appeals modified its position in the case of Brooke S.B. v. Elizabeth A. C. C. In that case, the court focused on a written agreement that two women made to jointly undertake the creation of a new child through donor insemination for them to raise together, and found that where the couple had gone through with their agreement, had the child, and raised it together for some time before splitting up, it was appropriate to allow the second parent to seek custody or visitation so that a court could determine whether it was in the child’s best interest to continue the second parent’s relationship with the child.

The court’s opinion in Brooke S.B., written by the late Judge Sheila Abdus-Salaam, was narrow and cautious, announcing a ruling based on the facts of that case, and leaving to later development other possible theories for second parents to use. In one case decided shortly after, the court accepted a “judicial estoppel” theory, where the birth mother had sued her former partner for child support, alleging that she had a parental obligation.  When the former partner than sued to assert parental rights, the Court of Appeals said that the birth mother could not deny her former partner’s parental status, which would be inconsistent with her position in the earlier case, even though the parties had not made a formal agreement like the one in Brooke S.B..

Kelly Gunn and Circe Hamilton, who had been together since 2004, agreed in 2007 that they would undertake an international adoption and raise a child together as a family. The plan was that Hamilton would adopt a child overseas, bring the child home to New York, and that Gunn would then complete a “second parent” adoption, a procedure which has been possible in New York for many years.  However, these plans had not come to fruition when the women’s romantic relationship ended in December 2009.

In 2010, Gunn and Hamilton signed a separation agreement negotiated with the assistance of lawyers, formally ending their cohabitation and romantic relationship, and dividing up their assets (including real property). Despite this breakup, Hamilton continued to deal with adoption agencies and eventually did adopt a child overseas with Gunn’s encouragement in the summer of 2011.  Gunn was in Europe on business at the time and met Hamilton and the child in London, from where they flew back to New York.  Although the women’s romantic relationship had ended, they had remained friends, and there is an extensive record of communications between them, which the trial court considered in reaching a determination that the 2007 agreement had not survived the breakup of the relationship.

Despite the breakup, Gunn was eager to be involved in the child’s life, and Hamilton accommodated her by allowing frequent contact, resulting in Gunn forming an attachment to the child. In August 2016, around the time that the Court of Appeals had overruled the Alison D. decision in the Brooke S.B. case, Hamilton, a British native, announced that she was planning to move back to England with the child and Gunn quickly sprang into action, filing this lawsuit and seeking a temporary order requiring Hamilton to remain in New York with the child while the case was litigated.  Gunn claimed that under the Brooke S.B. case, she had “standing” to seek joint custody and visitation rights because of the 2007 agreement the women had made.

Justice Nervo did not dismiss the case outright, and there was a temporary order, but after a lengthy trial he determined that the 2007 agreement had not survived the women’s breakup, and that by the time Hamilton adopted the child, she was acting on her own. The judge concluded that Gunn was a friend who had formed an attachment with the child, but not a “parent” within the meaning of the Domestic Relations Law, so she did not have standing to seek any parental rights.

The decision proved controversial from the moment it was announced. Despite the narrowness of the Court of Appeals ruling in Brooke S.B., that court had acknowledged the possibility that in a future case it might be appropriate to recognize parental standing in the absence of an express agreement, using a legal doctrine called “equitable estoppel,” which has been recognized by courts in several other states in lesbian parent custody disputes.  Gunn argued that this was such an appropriate case.  However, Justice Nervo, having concluded that Gunn did not have standing under his interpretation of the Brooke S.B. decision, had ended the trial without letting Gunn present additional evidence that could be relevant to an equitable estoppel claim.

Writing for the Appellate Division, Judge Gisch found that this may be the kind of case where equitable estoppel is appropriate. Certainly, the Court of Appeals’ Brooke S.B. decision did not foreclose the possibility.  While agreeing with Justice Nervo that the facts supported a conclusion that the 2007 agreement had terminated together with the parties’ romantic relationship well over a year before Hamilton adopted the child, and thus the case did not come squarely within the holding of Brooke S.B., nonetheless the court held that both parties should have the opportunity to present evidence about whether this would be an appropriate case to apply equitable estoppel.

Equitable estoppel might be a basis for Gunn to have standing to sue, but an ultimate decision on the merits would require the court to determine what would be in the best interests of the child. As to that, the court said, the child’s voice was an indispensable component, and was so far conspicuous by its absence from this case.   It is usual to appoint a person – frequently a lawyer – as “guardian ad litem” to represent the interest of the child in a custody and visitation dispute when the child is deemed too young and immature to speak for him or herself.  In this case, the child was born in 2011, and so by the time a hearing will be held will be seven years old – perhaps old enough to speak for himself, but that is something for Justice Nervo to determine.

The trial court will have to decide whether this is a case where Gunn had assumed a sufficiently parental role toward the child, with the consent or at least the acquiescence of Hamilton, to give her “standing” to be considered a parent for purposes of a custody and visitation contest, and then whether, under all the circumstances, it would be in the best interest of the child for Gunn to continue playing a parental role in the child’s life with the court ordering Hamilton to allow this relationship to continue.

Gunn had asked to have the case assigned to a different judge, but the Appellate Division declined to do so, without explanation.

Gunn is represented by Robbie Kaplan and her law firm, Kaplan & Company, as well as lawyers from Morrison Cohen LLP and Chemtob Moss & Forman LLP. Hamilton is represented by lawyers from Cohen Rabin Stine Schumann LLP.  The LGBT Law Association Foundation of Greater New York submitted an amicus brief to the court, with pro bono assistance from Latham & Watkins LLP, not taking sides between the parties but discussing the possible routes open to the court in applying the Brooke S.B. case to this new situation.

 

Manhattan Court Finds Former Same-Sex Partner of Adoptive Mother Lacks Standing to Contest Custody of the Child

Posted on: April 24th, 2017 by Art Leonard No Comments

Manhattan State Supreme Court Justice Frank P. Nervo ruled on April 11 that the former same-sex partner of a woman who adopted a child from Africa after the women’s relationship had ended could not maintain a lawsuit seeking custody and visitation with the child based on the relationship that she developed with the child after the adoption took place.  K. v. C., 2017 WL 1356080, 2017 NY Misc LEXIS 1624 (N.Y. Sup. Ct., N.Y. Co.).  In one of the first applications of the New York Court of Appeals’ historic August 2016 ruling in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, Justice Nervo found that plaintiff Kelly Gunn had failed to show by “clear and convincing evidence” that she and her former partner, Circe Hamilton, had agreed to adopt and raise the child together, which would have brought the case within the conceptual sphere, if not the precise holding, of the Court of Appeals’ recent precedent. Gunn has announced that she will appeal the ruling to the Appellate Division, First Department, in Manhattan, and seek an extension of the twenty-day stay that Justice Nervo put on his ruling.

Justice Nervo’s application of the recent precedent was complicated by the limitations of that prior ruling.  In that case, which was a consolidation of two separate cases, both cases involved donor insemination situations where the former partners had planned for and carried out the birth of a child within the context of their relationship, with an explicit mutual agreement that they would both be parents of the child, followed by years of living together with the child before the women separated.  This new case posed different facts.

In its Brooke S.B. ruling, written by the late Judge Sheila Abdus-Salaam, the Court of Appeals had cautiously abandoned its prior bright line test, under which a biologically-unrelated same-sex co-parent was treated as a legal stranger without standing to seek custody or visitation, making an exception for situations where a parental relationship was created by mutual consent within the context of donor insemination.  “Because we necessarily decide these cases based on the facts presented to us,” wrote Judge Abdus-Salaam in that case, “it would be premature for us to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement.  Accordingly, we do not now decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody.”

Judge Nervo’s opinion referred to the parties by first initials, but press reporting after his opinion was released included their names.

Gunn and Hamilton “were in a relationship from 2007 to 2009, entering into a cohabitation agreement on May 18, 2007,” wrote the judge.  “It is undisputed that during their relationship, they entered into a plan to adopt and raise a child together.  It is also undisputed that the parties’ relationship deteriorated over time and they entered into a separation agreement on May 28, 2010.”

About ten months later, Hamilton learned that a child was available for adoption in Ethiopia and began to take the steps to complete the adoption.  Gunn claims that despite their separation, she facilitated the adoption through a substantial monetary payment as part of their separation agreement, which made it possible for Hamilton to “establish a home sufficient to pass inspection by the adoption agency.”  She also arranged a business trip to be able to travel with Hamilton and the child, Abush, on the London-to-New York part of Hamilton’s trip home with the child after obtaining custody of him in Ethiopia.  Gunn also presented evidence of her continuing involvement with the child after the return to New York, although Gunn conceded that “her involvement with the child was limited because [Hamilton] would disapprove.”

On the other hand, Hamilton argued that the couples’ plan to adopt a child and raise the child together “dissolved contemporaneously with the dissolution of the parties’ relationship.”  She argued that Gunn’s involvement after Hamilton adopted the child was “only a supportive role as a close friend” of Hamilton and the child.  She contended that Gunn was “merely a godmother,” not a parent.  She also argued that she did not “encourage, facilitate or condone a parental relationship” between Gunn and the boy, who is now seven years old.

Thus, this case did not precisely map the factual contours approved by the Court of Appeals in the Brooke S.B. case.  In attempting to adapt that ruling and apply it to these facts, Judge Nervo interpreted the earlier case to extend to an adoption situation, but only if the plaintiff could show, by clear and convincing evidence, that the parties had planned to adopt the child and raise it together and carried out their plan within the context of their continuing relationship.  While these parties had such a plan prior to their separation, he found, in order to meet this test, the plan had to have continued through the adoption process and the raising of the child, which he held did not occur in this case.

The timing of Gunn’s lawsuit is interesting.  Although Hamilton adopted Abush in 2011, Gunn did not file her lawsuit until September 1, 2016, two days after the Court of Appeals decided Brooke S.B.  Prior to that decision, of course, her suit would have been blocked by the precedent that the Court of Appeals overruled, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991).  In an April 20 article about the case, the New York Times reported that Gunn went to court “to prevent her former partner . . . from moving to her native London” with the child.  Gunn sought immediate relief when filing her complaint, which first went to Justice Matthew F. Cooper, who issued an interim order restraining Hamilton from relocating Abush to London while the case was pending.  The matter was then assigned to Justice Nervo, who scheduled a hearing to begin just a week later, on September 8.  The hearing continued sporadically until February 16, 2017. Hamilton had responded to the complaint on September 6 with a motion to dismiss the case.  Gunn finished presenting her witnesses on November 23.  After evaluating Gunn’s evidence, Judge Nervo denied Hamilton’s motion to dismiss, finding that Gunn’s evidence, as yet uncontradicted, had established what lawyers call a prima facie case, a basis for concluding that she had a potential claim to parental standing.

However, after hearing Hamilton’s evidence, which ended on February 16, Justice Nervo concluded the factual and legal issues against Gunn, granted Hamilton’s motion to dismiss, denied Gunn’s motion and vacated the interim orders that had been issued by Justice Cooper. He also dissolved interim orders that had enabled Gunn to continue seeing the child while the case was ongoing.  However, recognizing that Gunn would likely appeal and could have grounds to argue that the Court of Appeals’ precedent should be given a broader reading, Nervo stayed his order for twenty days.  A prompt appeal and petition to the Appellate Division to preserve the interim relief might preserve the status quo while an appeal is considered.

Justice Nervo’s opinion includes a lengthy summary of the testimony presented by both parties, which led the judge to conclude that Gunn had fallen short of showing by clear and convincing evidence that she had a parental relationship with the child based on a mutual agreement with Hamilton.  “Upon the presentation of the evidence of both parties over 36 days of testimony, constituting a hearing transcript of 4,738 pages, 215 exhibits on behalf of petitioner and 126 exhibits on behalf of respondent, the court finds the petitioner has on numerous occasions stated that she did not want to be a parent and gave no indication to either respondent or third parties that she either wanted this role or acted as a parent,” wrote Nervo.  “Therefore, she has failed to establish by clear and convincing evidence that she has standing as a parent under Domestic Relations Law Section 70, as established In the Matter of Brooke S.B. v. Elizabeth A.C.C.”

The court never addressed the best interest of the child, usually a key finding in a custody dispute, because in order to put that issue into play, a plaintiff has first to establish her status as a parent or, under New York cases, show extraordinary circumstances in order to invoke the court’s authority to require a biological or adoptive parent to engage in a contest about the best interest of her child.  Part of Gunn’s argument on appeal will likely be that Brooke S.B. has implicitly overruled the extraordinary circumstances requirement in cases involving same-sex partners who had jointly planned to raise a child together, even if the case does not involve donor insemination or a continuous relationship of the women prior to the adoption.

Reading through Judge Nervo’s summary of the evidence, which is unlikely to be upset on appeal, as appellate courts generally refrain from second-guessing the factual findings of trial judges in custody and visitation cases unless there is an appearance of substantial bias against a party or failure to account for significant evidence in the hearing record, it sounds like he concluded that although Gunn had formed a relationship with Abush and there were some indications that it was deeper than a mere acquaintanceship or babysitter kind of relationship, on the other hand there was significant evidence that Gunn had expressed reservations during her relationship with Hamilton about the adoption plans and had never directly communicated to Hamilton after the adoption that she desired to take on the responsibility of being a co-parent of the child.  Since the Court of Appeals emphasized in its decision that standing would arise from a mutual agreement between the child’s biological or adoptive parent and her same-sex partner, and there was no sign of such an agreement at or after the time of this adoption, the case could not be made to fit precisely into the Court of Appeals precedent.

On the other hand, it may be open to the Appellate Division to take a different view, especially since the Court of Appeals disclaimed making a ruling on factual situations different from those in the cases it was deciding.  Clearly, the Court of Appeals rejected the bright line test of the old Alison D. v. Virginia M. case.  Whether it will countenance a broader exception to the standing rules than it carved out in Brooke S.B. is uncertain.

Gunn’s attorney, Nancy Chemtob, told the New York Times, “I believe that this decision doesn’t follow Brooke.”  The Times reported that “Bonnie Rabin, one of Ms. Hamilton’s lawyers, said the ruling should allay concerns that a trusted caretaker could suddenly claim parental rights under the state’s expanded definition of parentage.  ‘That would be scary to parents,’ she said.”

 

New York Court of Appeals Overrules Alison D., Sets New Test for Co-Parent Standing

Posted on: August 30th, 2016 by Art Leonard No Comments

The New York Court of Appeals has overruled a quarter-century-old precedent, establishing a new rule for determining when somebody who is neither a biological nor an adoptive parent can seeking custody of a child. The opinion for the court by Judge Sheila Abdus-Salaam in Brooke S.B. v. Elizabeth A. C.C., 2016 N.Y. LEXIS 2668, 2016 Westlaw 4507780 (August 30, 2016), provides that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law Section 70.”

The court was ruling on two cases which originated with similar facts but then developed in different directions. According to the plaintiff’s petition in Brooke V. v. Elizabeth C.C., the women began their relationship in 2006, announced their “engagement” the following year, and then decided to have and raise a child together.  Elizabeth became pregnant through donor insemination and bore a son in June 2009.  Brooke and Elizabeth lived together with the child, sharing parental duties, until their relationship ended in 2010.  Elizabeth permitted Brooke to continue visiting with their son until the relationship between the women deteriorated, and Elizabeth terminated Brooke’s contact in 2013.  Brooke sued for joint custody and visitation rights, but the trial court and the Appellate Division agreed with Elizabeth’s argument that by virtue of the old Court of Appeals ruling, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), Brooke could not bring the lawsuit because she was neither the biological nor the adoptive parent of the child.  Brooke appealed to the Court of Appeals, asking it to overrule Alison D.

Although the term “parent” is not defined in the Domestic Relations Law provision that authorizes lawsuits for custody and visitation, it was defined by the Court of Appeals in Alison D. to be limited to biological or adoptive parents.  At that time, New York did not allow same-sex marriages or second-parent adoptions, so the ruling effectively precluded a same-sex co-parent from seeking joint custody or visitation after a break-up with the biological parent, in the absence of “extraordinary circumstances” recognized in some other cases decided by the Court of Appeals.  The court specifically ruled that the facts of Alison D. (similar to the Brooke B. case) did not constitute such “extraordinary circumstances.”

In the other case, Estrellita A. v. Jennifer D., the women began their relationship in 2003, registered as domestic partners in 2007, and then agreed to have a child together, with Jennifer becoming pregnant through donor insemination.  They agreed that they would obtain sperm from a Latino donor, matching Estrellita’s ethnicity.  Their daughter was born in November 2008. They lived together as a family for the next three years until the women’s relationship ended and Estrellita moved out in September 2012.  Estrellita continued to have contact with the child with Jennifer’s permission.  In October 2012, Jennifer started a proceeding in Family Court seeking child support payments from Estrellita.  Estrellita responded by petitioning for legal visitation rights.  The Family Court granted Jennifer’s petition for support, finding that “the uncontroverted facts established” that Estrellita was “a parent” of the child, and so could be held liable to pay child support.  However, responding to Estrellita’s petition for visitation, Jennifer argued that the Alison D. precedent should apply to block her claim.  The Family Court disagreed with Jennifer, finding that having alleged that Estrellita was a parent in order to win child support, she could not then turn around and deny that Estrellita was a parent in the visitation case.  The Family Court applied the doctrine of “judicial estoppel” to preclude Jennifer from making this inconsistent argument, and concluded after a hearing that ordering visitation was in the child’s best interest.  The Appellate Division affirmed this ruling, and Jennifer appealed.

Judge Abdus-Salaam’s decision refers repeatedly to the dissenting opinion written by the late Chief Judge Judith Kaye in the Alison D. case.  Judge Kaye emphasized that the court’s narrow conception of parental standing would adversely affect children being raised by unmarried couples, thus defeating the main policy goal of the Domestic Relations Law, which was to make decisions in the best interest of the child.  By adopting this narrow decision, the court cut short legal proceedings before the child’s best interest could even be considered.  Unfortunately, Judge Kaye passed away before learning that her dissent would be vindicated in this new ruling.  However, her dissent from the Court of Appeals’ refusal in Hernandez v. Robles to rule for same-sex marriage rights was vindicated in 2011 when the legislature passed the Marriage Equality Act, and she also lived to see her legal reasoning vindicated by the U.S. Supreme Court in Obergefell v. Hodges, which referred to her Hernandez dissent.

Judge Abdus-Salaam pointed out that Judge Kaye’s arguments in 1991 were even stronger today, with the growth of diverse families and the large numbers of children living in households headed by unmarried adults. She referred to a concurring opinion in a case decided by the court five years ago, in which then Chief Judge Jonathan Lippman and Associate Judge Carmen Ciparick (both since retired from the court) had argued that the Alison D. ruling “had indeed caused the widespread harm to children predicted by Judge Kaye’s dissent,” and asserting that Alison D. was inconsistent with some subsequent rulings.  That concurring opinion called for a “flexible, multi-factored” approach to decide whether there was a parental relationship between a child and an adult outside the narrow definition of Alison D.  In that same case, Judge Robert Smith (also now retired) argued that an appropriate test for parental status would focus on whether “the child is conceived” through donor insemination “by one member of a same-sex couple living together, with the knowledge and consent of the other.”

Acknowledging a body of court precedent recognizing the strong constitutional rights of biological parents, the Court of Appeals decided in its August 30 decision to take a cautious approach. Although some of the parties to the case urged the court to adopt an expansive, one-size-fits-all test for determining the standing of persons who are not biological or adoptive parents, the court decided to focus on the facts of these two cases, in both of which the plaintiffs had alleged that they had an agreement with their same-sex partner about conceiving the child through donor insemination and then jointly raising the child as co-parents.  The court left to another day resolving how to deal with cases where a biological parent later acquires a partner who assumes a parental role towards a child, or where a child is conceived without such an advance agreement.

Another sign of the court’s caution was its decision that the plaintiff would have to show by “clear and convincing evidence” that such an agreement existed. The normal standard of proof in civil litigation is “preponderance of the evidence,” which means the plaintiff would have to show that it was “more likely than not” that such an agreement existed.  Demanding “clear and convincing evidence” was an acknowledgment of the strong constitutional rights that courts have accorded to biological parents in controlling the upbringing of their children, including determining who would have visitation rights.  The U.S. Supreme Court emphasized this several years ago, when it struck down a Washington State statute that allowed anybody, regardless of legal or biological relationships, to petition for visitation upon a showing that it was in the best interest of the child.  Judge Abdus-Salaam emphasized the necessity of showing an agreement, that the biological parent had consented in advance to having a child and raising the child jointly with her partner.

The court decided this case without the participation of Judge Eugene Fahey. Four other members of the court signed Judge Abdus-Salaam’s opinion.  All of these judges were appointed by Governor Andrew Cuomo, a Democrat.  The other member of the court, Judge Eugene Pigott, who was appointed by Governor George Pataki, a Republican, and whose term expires this year, wrote a separate opinion, concurring in the result but disagreeing with the majority about overruling Alison D. v. Virginia M.

Judge Pigott pointed out that the Alison D. decision had been reaffirmed several times by the court, most recently just five years ago in a ruling that praised Alison D. as creating a “bright line test” that avoided unnecessary litigation and uncertainty about parental standing.  In that case, Debra H., the court decided on alternative grounds that a co-parent could seek visitation because the women had entered into a Vermont civil union before the child was born, thus giving equal parental rights under Vermont law to which New York could extend comity.

Judge Pigott argued that since we now have marriage equality and co-parent adoption in New York, and the Marriage Equality Law requires that same-sex marriages get equal legal treatment with different-sex marriages (including application of the presumption that a child born to a married woman is the legal child of her spouse), same-sex couples stand on equal footing with different sex couples and have no need for any modification of the definition of “parent” established by Alison D.   Nonetheless, he joined the court’s disposition of these two cases.  In %Estrellita v. Jennifer%, he agreed that it was appropriate to apply judicial estoppel and hold that Estrellita’s status as a parent had been established in the support proceeding and could not be denied by Jennifer in the visitation proceeding.  In the case of Brooke v. Elizabeth, he would apply the doctrine of “extraordinary circumstances” under which the trial court can exercise equitable powers to allow a non-parent who has an established relationship with a child to seek custody.  The “extraordinary circumstance” here would be one of timing and the changing legal landscape between 2006 and 2013, making it appropriate to allow Brooke to seek joint custody and visitation if she can prove her factual allegations about the women’s relationship.  Judge Pigott apparently sees this case as presenting a transitional problem that is resolved by changes in the law after these women had their children.

In the Brooke case, Susan Sommer of Lambda Legal represents Brooke with co-counsel from Blank Rome LLP and the LGBT Bar Association of Greater New York, Sherry Bjork represents Elizabeth, and Eric Wrubel serves as court-appointed counsel for the child.  In the Estrellita case, Andrew Estes represents Estrellita, Christopher J. Chimeri represents Jennifer, and John Belmonte is appointed counsel for the child.  The court received amicus briefs on behalf of the National Association of Social Workers, the National Center for Lesbian Rights, the New York City and State Bar Associations, the American Academy of Adoption Attorneys, Sanctuary for Families, and Lawyers for Children.   By interesting coincidence, Lambda Legal had represented the plaintiff in Alison D. v. Virginia M. twenty-five years ago, with its then Legal Director, the late Paula Ettelbrick, arguing the case before the Court of Appeals.

New York High Court Affirms Setting Aside Hate Crime Conviction as Inconsistent

Posted on: November 24th, 2014 by Art Leonard No Comments

The New York Court of Appeals, the state’s highest court, ruled unanimously on November 24 that the Appellate Division had correctly reversed the hate crime manslaughter conviction of Dwight R. DeLee, who was charged in the murder of a New York transgender woman named Lateisha Green, because the jury’s verdict was inconsistent.  However, the court modified the Appellate Division’s decision by granting the prosecution an opportunity to resubmit the charge of manslaughter in the first degree as a hate crime to another grand jury, which may lead to a new prosecution.

The decision for the court by Judge Susan P. Read reveals nothing about the nature of the charged offense, and makes no reference to the fact that the victim was a transgender woman or that the defendant was charged with murdering her because of her gender identity.  Instead, the coldly analytical opinion focuses solely on the inconsistency in the jury’s verdict and the trial judge’s failure to correct the situation by explaining the inconsistency to the jury and asking them to resume deliberations to produce a consistent verdict.  A casual reader of the court’s opinion in isolation would have no idea what the case was actually about.

Under New York law, a jury can convict on a hate crime charge if they find all the elements of an underlying crime plus the element of bias on grounds prohibited by the state’s hate crime law.  DeLee was indicted for second-degree murder as a hate crime, second-degree murder, and third-degree criminal weapon possession.  The jury convicted him of first-degree manslaughter as a hate crime and a weapon possession offense, but acquitted him on the charge of first-degree manslaughter.  After the verdict was rendered, DeLee’s attorney argued that the verdict was inconsistent, since the acquittal on the manslaughter charge could be taken to mean that the jury found that the prosecution failed to prove all the elements of the crime of manslaughter.  If so, of course, logically DeLee could not be found guilty of manslaughter as a hate crime.

The defense lawyer moved to set the verdict aside as “repugnant,” a technical term meaning that it was fatally flawed due to inconsistency.  The trial judge denied the motion, and sentenced Lee to 25 years in prison.  But Lee successfully appealed, persuading the Appellate Division that the verdict was repugnant.  There was a heated dissenting opinion by Justice Erin Peradotto, who focused on the lack of clarity in the trial judge’s charge to the jury and the obvious misunderstanding by the jury that if they found all the elements of manslaughter as a hate crime satisfied, they should not acquit on the simple manslaughter count.  By its conviction, she argued, the jury was clearly indicating their conclusion that all the manslaughter elements had been met.

Judge Read wrote that this case “presents a straightforward application” of the relevant Court of Appeals precedents, “which clearly contemplate that when jury verdicts are absolutely inconsistent, the verdict is repugnant.  The rationale for the repugnancy doctrine is that the defendant cannot be convicted when the jury actually finds, via a legally inconsistent split verdict, that the defendant did not commit an essential element of the crime.”   Since the jury in this case acquitted DeLee of manslaughter, it arguably found that the prosecution failed to prove at least one element of that crime.

Read continued, “Repugnancy does not depend on the evidence presented at trial or the record of the jury’s deliberative process, and the instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict.  In making these determinations, it is inappropriate for the reviewing court to attempt to divine the jury’s collective mental process.  Jurors are allowed to compromise, make mistakes, be confused or even extend mercy when rendering their verdicts.”

The prosecution had presented an affidavit from the jury foreperson, attesting to the jury’s intention to convict DeLee, but the court dismissed that as “the opinion of just one juror, and, in any event, [it] cannot be considered under our longstanding precedent.”

However, the court concluded that the Appellate Division’s decision to order absolute acquittal of DeLee went too far, because “a repugnant verdict does not always signify that a defendant has been convicted of a crime on which the jury actually found that he did not commit an essential element.”  It is possible that a jury has decided to acquit on a lesser-included charge, as here, in order to exercise mercy.  “But if this mercy function is the cause of a repugnant verdict,” wrote Read, “the remedy of dismissal of the repugnant conviction is arguably unwarranted.  Indeed, it provides a defendant with an even greater windfall than he has already received.”  The court concluded that “permitting a retrial on the repugnant charge upon which the jury convicted, but not on the charge of which the jury actually acquitted defendant, strikes a reasonable balance.  This is particularly so given that a reviewing court can never know the reason for the repugnancy.  Accordingly, the People may resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury.”

If the new grand jury indicts DeLee on the manslaughter as a hate crime charge, he can be retried on that charge without violating the ban on “double jeopardy” since he was not acquitted on that charge at the previous trial.  The federal constitution’s double jeopardy provision prohibits retrying a criminal defendant on a charge of which he has been acquitted by a jury.

In a concurring opinion, Judge Sheila Abdus-Salaam explained at length how a trial judge in a hate crime case should charge the jury to avoid the problem of inconsistent verdicts.  She concluded that “courts would provide particularly clear and legally correct guidance on this subject by telling the jury to treat a non-hate crime as a lesser included offense of an equivalent hate crime allegedly committed via the same criminal acts” and thus that “it is impossible to commit the hate crime without also committing the ordinary crime” on which it is based.  “To that end,” she wrote, “the court should instruct the jury that if it convicts the defendant of the greater offense, it will not consider the lesser included offense.  In that situation, the jury should be told to deliberate on any unrelated charges based on different criminal conduct,” such as the weapons possession charge in this case.  “Of course, if the jury instead acquits the defendant of the hate crime, it should next deliberate on the equivalent ordinary offense, and in the event of an acquittal on that ordinary charge, it may consider any lesser hate crime or lesser included ordinary crime which has been charged based on the same conduct.”

In this case, DeLee was charged with second-degree murder as a hate crime, for which ordinary second-degree murder, manslaughter as a hate crime, and ordinary manslaughter are lesser included offenses.  It is easy to see how a jury could become confused and produce a repugnant verdict, even if it concluded that the defendant was guilty of a hate crime.  The party most likely at fault for this result is the trial judge, whose failure to instruct the jury immediately upon the rendition of the inconsistent verdict and to resubmit the case to them has generated all the subsequent litigation on appeal.  Now the local prosecutor will get a second chance to seek justice for Lateisha Green by retrying Dwight DeLee.

James P. Maxwell represented the prosecution on appeal and Philip Rothschild represented DeLee.  Lambda Legal, the District Attorneys Association of NY and the NY State Association of Criminal Defense Lawyers submitted amicus briefs.