de novo hearing in New York

2023In my view, the court's purported de novo hearing, described above, did not provide defendant with a meaningful opportunity to participate in the Sandoval hearing ( see People v Monclavo , 87 NY2d 1029, 1031 [1996]; People v Favor , 82 NY2d 254, 267 [1993], rearg denied 83 NY2d 801 [1994]; Dokes , 79 NY2d at 661-662 ).

2023During the purported de novo hearing, the court did not "entertain[ ] argument from both counsel" ( People v Vargas , 201 AD2d 963, 964 [4th Dept 1994], lv denied 83 NY2d 859 [1994])—i.e., the People failed to "detail[ ] the convictions [they] intended to use, [and] defense counsel [never] questioned the[ ] use [thereof]" ( People v Smith , 186 AD2d 976, 976 [4th Dept 1992], affd 82 NY2d 254 [1993]).

2023Moreover, defendant was present for the continuing discussion on the next court date and was present when a decision was made by the court. "[A] defendant's absence from a hearing will not deprive him or her of the opportunity to give meaningful input when the court essentially holds a de novo hearing on the same matter at which defendant is present" ( People v Roman , 88 NY2d 18, 27 [1996]).

2023Moreover, defendant was present for the continuing discussion on the next court date and was present when a decision was made by the court. "[A] defendant's absence from a hearing will not deprive him or her of the opportunity to give meaningful input when the court essentially holds a de novo hearing on the same matter at which defendant is present" ( People v Roman , 88 NY2d 18, 27 [1996]).

2023In my view, the court's purported de novo hearing, described above, did not provide defendant with a meaningful opportunity to participate in the Sandoval hearing ( see People v Monclavo , 87 NY2d 1029, 1031 [1996]; People v Favor , 82 NY2d 254, 267 [1993], rearg denied 83 NY2d 801 [1994]; Dokes , 79 NY2d at 661-662 ).

1994The People argue that defendant’s presence at this conference was " 'superfluous’ ” (see, People v Dokes, supra, at 662) because it was not a de novo hearing but merely defense counsel’s reargument of the position advanced in the earlier pretrial hearing at which defendant was present.

2023Under those circumstances, we conclude that defendant was afforded a meaningful opportunity to participate at the court's subsequent de novo inquiry and his absence from the initial conference does not require reversal ( see People v Reid , 117 AD3d 1448 , 1449 [4th Dept 2014], lv denied 23 NY3d 1041 [2014]; People v Lynch , 216 AD2d 929 , 929 [4th Dept 1995], lv denied 87 NY2d 904 [1995]; People v Vargas , 201 AD2d 963, 964 [4th Dept 1994], lv denied 83 NY2d 859 [1994]).

2023During the purported de novo hearing, the court did not "entertain[ ] argument from both counsel" ( People v Vargas , 201 AD2d 963, 964 [4th Dept 1994], lv denied 83 NY2d 859 [1994])—i.e., the People failed to "detail[ ] the convictions [they] intended to use, [and] defense counsel [never] questioned the[ ] use [thereof]" ( People v Smith , 186 AD2d 976, 976 [4th Dept 1992], affd 82 NY2d 254 [1993]).

2015The court further directed the Board to "explicitly address[]" the "degree to which [the victim impact statements] figure in the Board's decision." Respondents appeal.1 Inasmuch as the sentencing minutes – previously believed to have been lost – were located after the Board's decision, directing a de novo hearing for the Board to consider such minutes was not error under these unique circumstances (see Matter of Smith v New York State Div. of Parole, 64 AD3d 1030, 1031 [2009]; Matter of Lovell v New York State Div. of Parole, 40 AD3d 1166, 1167 [2007]; Matter of Standley v New York State Div.

2015The court further directed the Board to “explicitly address] ]” the “degree to which [the victim impact statements] figure in the Board’s decision.” Respondents appeal. * Inasmuch as the sentencing minutes — previously believed to have been lost — were located after the Board’s decision, directing a de novo hearing for the Board to consider such minutes was not error under these unique circumstances (see Matter of Smith v New York State Div. of Parole, 64 AD3d 1030, 1031 [2009]; Matter of Lovell v New York State Div. of Parole, 40 AD3d 1166, 1167 [2007]; Matter of Standley v New York State Div

2015The court further directed the Board to "explicitly address[]" the "degree to which [the victim impact statements] figure in the Board's decision." Respondents appeal.1 Inasmuch as the sentencing minutes – previously believed to have been lost – were located after the Board's decision, directing a de novo hearing for the Board to consider such minutes was not error under these unique circumstances (see Matter of Smith v New York State Div. of Parole, 64 AD3d 1030, 1031 [2009]; Matter of Lovell v New York State Div. of Parole, 40 AD3d 1166, 1167 [2007]; Matter of Standley v New York State Div.

2015The court further directed the Board to “explicitly address] ]” the “degree to which [the victim impact statements] figure in the Board’s decision.” Respondents appeal. * Inasmuch as the sentencing minutes — previously believed to have been lost — were located after the Board’s decision, directing a de novo hearing for the Board to consider such minutes was not error under these unique circumstances (see Matter of Smith v New York State Div. of Parole, 64 AD3d 1030, 1031 [2009]; Matter of Lovell v New York State Div. of Parole, 40 AD3d 1166, 1167 [2007]; Matter of Standley v New York State Div

2026Petitioner's May 2025 de novo hearing has rendered his challenges to the Board's February 2024 decision moot, as he has "received all of the relief to which he was entitled — namely, a de novo appearance before the Board" ( Matter of Campbell v Stanford , 215 AD3d 1195, 1196 [3d Dept 2023] [internal quotation marks and citation omitted]; see Matter of Ifill v Evans , 87 AD3d 776, 777 [3d Dept 2011]), and we find that the exception to the mootness doctrine does not apply ( see Matter of Hearst Corp. v Clyne , 50 NY2d 707, 714-715 [1980]).

2026Petitioner's May 2025 de novo hearing has rendered his challenges to the Board's February 2024 decision moot, as he has "received all of the relief to which he was entitled — namely, a de novo appearance before the Board" ( Matter of Campbell v Stanford , 215 AD3d 1195, 1196 [3d Dept 2023] [internal quotation marks and citation omitted]; see Matter of Ifill v Evans , 87 AD3d 776, 777 [3d Dept 2011]), and we find that the exception to the mootness doctrine does not apply ( see Matter of Hearst Corp. v Clyne , 50 NY2d 707, 714-715 [1980]).

2013The essential consideration in making an award of custody or visitation “is the best interests of the child, under the totality of the circumstances” (Matter of Boggio v Boggio, 96 AD3d 834, 835 [2012]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]).

2005Even assuming, arguendo, that the JHO erred in conducting a de novo hearing, we conclude that plaintiff established a change of circumstances that “reflects a real need for change to ensure the best interest of the child,” thus warranting the change in primary physical residence of the child (Matter of Irwin v Neyland, 213 AD2d 773, 773 [1995]; see generally Friederwitzer v Friederwitzer, 55 NY2d 89, 95-96 [1982]).

2013Respondent’s denial of petitioner’s application for parole was rational (see Matter of Silmon v Travis, 95 NY2d 470, 476 [2000]).

2013Respondent’s denial of petitioner’s application for parole was rational (see Matter of Silmon v Travis, 95 NY2d 470, 476 [2000]).

2003We therefore annul the determination, grant the petition, and remit the matter to respondent for a de novo hearing before a different panel of the Board, which will consider only the sustained charge in determining whether to rescind petitioner’s open parole release date (see Matter of Quartararo v New York State Div. of Parole, 224 AD2d 266 [1996], Iv denied 88 NY2d 805 [1996]; see also Matter of King v New York State Div. of Parole, 190 AD2d 423, 434-435 [1993], affd 83 NY2d 788 [1994]; Matter ofRentz v Herbert, 206 AD2d 944, 945 [1994], Iv denied 84 NY2d 810 [1994]).

1999“Remorse” is not a factor listed in Executive Law § 259-i. Notwithstanding the Court of Appeals’ ruling that a petitioner is entitled to a de novo hearing when one or more members of the Parole Board consider “factors outside the scope of the applicable statute” (Matter of King v New York State Div. of Parole, 83 NY2d 788, 791 ), the Appellate Division, Third Department, has found it not inappropriate in a proper case (none of which has so far involved an Alford plea) for the Parole Board to consider a petitioner’s failure to accept responsibility or express remorse for his crimes (see, e.g.,

2017Contrary to the petitioner’s contention, the issues raised by him do not compel consideration of the appeal on the merits under the exception to the mootness doctrine (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 715 [1980]; cf. Matter of Lovell v New York State Div. of Parole, 40 AD3d 1166 [2007]; Matter of Marino v Travis, 13 AD3d 453, 454-455 [2004]).

2005The Second Department affirmed for the second time, finding that the Board’s determination was not based on any new evidence, and this time, the Court ordered Marino’s release instead of a de novo hearing ( 13 AD3d 453 [2004]).

2013The essential consideration in making an award of custody or visitation “is the best interests of the child, under the totality of the circumstances” (Matter of Boggio v Boggio, 96 AD3d 834, 835 [2012]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]).

2013The essential consideration in making an award of custody or visitation “is the best interests of the child, under the totality of the circumstances” (Matter of Boggio v Boggio, 96 AD3d 834, 835 [2012]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]).

2004As the Supreme Court held in Firestone Tire & Rubber Co. ( 489 US at 115 , quoting Restatement [Second] of Trusts § 187, Comment d [1959]): “[A] denial of benefits challenged under [section] 1132 (a) (1) (B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan ...

1989Furthermore, in the recent case of Firestone Tire & Rubber Co. v Bruch (489 US —, —, 109 S Ct 948, 956 [1989]), the United States Supreme Court held that under certain circumstances, a legal action challenging the denial of benefits under ERISA must be reviewed under a de novo standard.

2023Defendant validly waived his right to be present at the other proceedings at issue ( see People v Flinn , 22 NY3d 599, 601 [2014]; People v Velasquez , 1 NY3d 44, 50 [2003]).

2023Defendant validly waived his right to be present at the other proceedings at issue ( see People v Flinn , 22 NY3d 599, 601 [2014]; People v Velasquez , 1 NY3d 44, 50 [2003]).

2023Under those circumstances, we conclude that defendant was afforded a meaningful opportunity to participate at the court's subsequent de novo inquiry and his absence from the initial conference does not require reversal ( see People v Reid , 117 AD3d 1448 , 1449 [4th Dept 2014], lv denied 23 NY3d 1041 [2014]; People v Lynch , 216 AD2d 929 , 929 [4th Dept 1995], lv denied 87 NY2d 904 [1995]; People v Vargas , 201 AD2d 963, 964 [4th Dept 1994], lv denied 83 NY2d 859 [1994]).

2023Finally, I also respectfully disagree with the majority's conclusion that the court "made" its Sandoval ruling during the purported de novo hearing conducted in defendant's presence ( cf. Reid , 117 AD3d at 1449).

2023Defendant validly waived his right to be present at the other proceedings at issue ( see People v Flinn , 22 NY3d 599, 601 [2014]; People v Velasquez , 1 NY3d 44, 50 [2003]).

2023Defendant validly waived his right to be present at the other proceedings at issue ( see People v Flinn , 22 NY3d 599, 601 [2014]; People v Velasquez , 1 NY3d 44, 50 [2003]).

2013The essential consideration in making an award of custody or visitation “is the best interests of the child, under the totality of the circumstances” (Matter of Boggio v Boggio, 96 AD3d 834, 835 [2012]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]).

2013The essential consideration in making an award of custody or visitation “is the best interests of the child, under the totality of the circumstances” (Matter of Boggio v Boggio, 96 AD3d 834, 835 [2012]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]).

2023During the purported de novo hearing, the court did not "entertain[ ] argument from both counsel" ( People v Vargas , 201 AD2d 963, 964 [4th Dept 1994], lv denied 83 NY2d 859 [1994])—i.e., the People failed to "detail[ ] the convictions [they] intended to use, [and] defense counsel [never] questioned the[ ] use [thereof]" ( People v Smith , 186 AD2d 976, 976 [4th Dept 1992], affd 82 NY2d 254 [1993]).

1996Although the record fails to establish whether defendant was present at the initial discussions of his Sandoval motion, a de novo hearing was conducted on the record with defendant present (see, People v Smith, 186 AD2d 976 , affd 82 NY2d 254 ).

1983“The test is not whether actual bias existed, but whether the circumstances would give the appearance of bias or be reasonably regarded as bias * * * Basic to every judicial and quasi-judicial proceeding is that the integrity of the decision-making body must be above reproach and even the appearance of impropriety should be avoided” (De Camp v Good Samaritan Hosp., supra, at pp 767-768; see, also, Seabrook v Good Samaritan Hosp., 75 AD2d 849 , where a defendant telephoned a panel physician before the panel findings and where the court remanded for a de novo hearing on the issue of malpractice

1980Since there is no way of knowing to what extent that communication influenced the physician panelist’s handling of the case, the findings of the panel must be vacated in their entirety, and the matter remanded for a de novo hearing on the issue of malpractice before a new panel (see De Camp v Good Samaritan Hosp., 66 AD2d 766 ).

2003We therefore annul the determination, grant the petition, and remit the matter to respondent for a de novo hearing before a different panel of the Board, which will consider only the sustained charge in determining whether to rescind petitioner’s open parole release date (see Matter of Quartararo v New York State Div. of Parole, 224 AD2d 266 [1996], Iv denied 88 NY2d 805 [1996]; see also Matter of King v New York State Div. of Parole, 190 AD2d 423, 434-435 [1993], affd 83 NY2d 788 [1994]; Matter ofRentz v Herbert, 206 AD2d 944, 945 [1994], Iv denied 84 NY2d 810 [1994]).

1994Assuming, arguendo, that petitioner were correct in his contention that the Board failed to consider adequately or properly the statutory factors governing release on parole, the appropriate remedy would be a remittal to the Board for a de novo hearing before a different panel (see, Matter of King v New York State Div. of Parole, 190 AD2d 423, 434-435 , affd 83 NY2d 788 ).

2022Corp. v New York City Dept. of Design & Constr. , 25 AD3d 488, 489 [1st Dept 2006]; see Matter of Mandle v Brown , 5 NY2d 51, 65 [1958]; Matter of Newbrand v City of Yonkers , 285 NY 164, 178 [1941]).

1974As our court stated in Matter pf Newbrand v. City of Yonkers ( 285 N. Y. 164, 177 , supra), “ when a determination of the Board is challenged, a record must be presented which will enable the court to review the determination.” This principle was echoed in Goldberg v. Kelly ( 397 U. S. 254, 267 ) where the Supreme Court stated that one reason affidavits were" not sufficient to take the place of an oral hearing with the recipient present was the need to present a reviewing court with a record on which it could base a reasonable decision.