close hearing in New York

2013While we agree that a genetic marker test is not in the best interests of the subject child, the Family Court improvidently exercised its discretion in applying the doctrine of equitable estoppel against the appellant under all of the circumstances, including the undisputed fact that the appellant has had no contact or relationship with the subject child since the child was 18 months old (see Matter of Derrick H. v Martha J., 82 AD3d 1236, 1238-1239 [2011]; cf. Matter of Shondel J. v Mark D., 7 NY3d at 327-328 ; Matter of Angelo A.R. v Tenisha N.W., 108 AD3d 560 [2013]).

2013While we agree that a genetic marker test is not in the best interests of the subject child, the Family Court improvidently exercised its discretion in applying the doctrine of equitable estoppel against the appellant under all of the circumstances, including the undisputed fact that the appellant has had no contact or relationship with the subject child since the child was 18 months old (see Matter of Derrick H. v Martha J., 82 AD3d 1236, 1238-1239 [2011]; cf. Matter of Shondel J. v Mark D., 7 NY3d at 327-328 ; Matter of Angelo A.R. v Tenisha N.W., 108 AD3d 560 [2013]).

2012Indeed, the Attorney for the Child told the court at the close of the hearing that she “certainly would never want to recommend that [the child] have no contact with her mother.” We therefore modify the order in appeal No. 2 by vacating the -3- 316 CAF 10-00836 directive suspending any and all periods of visitation between the mother and the child, and we remit the matter to Family Court to determine an appropriate visitation schedule, which may include supervised visitation (see Matter of Cameron C., 283 AD2d 946, 947 , lv denied 97 NY2d 606 ).

2012Indeed, the Attorney for the Child told the court at the close of the hearing that she “certainly would never want to recommend that [the child] have no contact with her mother.” We therefore modify the order in appeal No. 2 by vacating the directive suspending any and all periods of visitation between the mother and the child, and we remit the matter to Family Court to determine an appropriate visitation schedule, which may include supervised visitation (see Matter of Cameron C., 283 AD2d 946, 947 [2001], lv denied 97 NY2d 606 [2001]).

2025Defendant's challenge to the Sandoval compromise is unpreserved because she did not interpose an objection to it by the close of the hearing but, rather, consented to the compromise ( see People v Cooper , 199 AD3d 1061, 1064 [3d Dept 2021], lv denied 38 NY3d 926 [2022]).

2025Defendant's contention that County Court improperly allowed the People to introduce evidence of her uncharged traffic infraction for refusing to submit [*5]to a breath test is without merit, as her refusal was "inextricably interwoven" with the charged offense, provided necessary background information as to the arrest, completed the trooper's narrative, and the trial court issued an appropriate limiting instruction prohibiting the People from eliciting testimony that such refusal constituted a violation of the Vehicle and Traffic Law ( People v Lewis , 224 AD3d 1143 , 1152 [3d Dept 2024] [int

2022Similarly, the record fails to establish that petitioner's conduct — which occurred outside the company of any other incarcerated individuals — triggered any response from other incarcerated individuals such that it "disturb[ed] the order of any part of the facility" (7 NYCRR 270.2 [B] [5] [iv] [rule 104.13]; see Matter of Ramos v Annucci , ___ AD3d ___, ___, 2022 NY Slip Op 05255, *1 [3d Dept 2022]; Matter of Hogan v Thompson , 204 AD3d 1201, 1202 [3d Dept 2022]; compare Matter of Beltre v Rodriguez , 185 AD3d 1370, 1370 [3d Dept 2020]).

2022Nevertheless, "a weight of the evidence challenge, which bears no preservation requirement, also requires consideration of the adequacy of the evidence as to each element of the crimes" ( People v Delbrey , 179 AD3d 1292, 1292-1293 [3d Dept 2020] [internal quotation marks and citations omitted], lv denied 35 NY3d 969 [2020]).

2022Similarly, the record fails to establish that petitioner's conduct — which occurred outside the company of any other incarcerated individuals — triggered any response from other incarcerated individuals such that it "disturb[ed] the order of any part of the facility" (7 NYCRR 270.2 [B] [5] [iv] [rule 104.13]; see Matter of Ramos v Annucci , ___ AD3d ___, ___, 2022 NY Slip Op 05255, *1 [3d Dept 2022]; Matter of Hogan v Thompson , 204 AD3d 1201, 1202 [3d Dept 2022]; compare Matter of Beltre v Rodriguez , 185 AD3d 1370, 1370 [3d Dept 2020]).

2022Turning first to defendant's claim that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence, defendant's legal sufficiency argument is unpreserved, as he failed to move to dismiss the burglary count at the close of the defense case ( see People v Cason , 203 AD3d 1309, 1310 [3d Dept 2022], lv denied 38 NY3d 1132 [2022]), and his motion to dismiss the criminal contempt count was not directed at the error now raised on appeal ( see People v Barber , 182 AD3d 794, 795 [3d Dept 2020], lv denied 35 NY3d 1064 [2020]).

2022Similarly, the record fails to establish that petitioner's conduct — which occurred outside the company of any other incarcerated individuals — triggered any response from other incarcerated individuals such that it "disturb[ed] the order of any part of the facility" (7 NYCRR 270.2 [B] [5] [iv] [rule 104.13]; see Matter of Ramos v Annucci , ___ AD3d ___, ___, 2022 NY Slip Op 05255, *1 [3d Dept 2022]; Matter of Hogan v Thompson , 204 AD3d 1201, 1202 [3d Dept 2022]; compare Matter of Beltre v Rodriguez , 185 AD3d 1370, 1370 [3d Dept 2020]).

2022Turning first to defendant's claim that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence, defendant's legal sufficiency argument is unpreserved, as he failed to move to dismiss the burglary count at the close of the defense case ( see People v Cason , 203 AD3d 1309, 1310 [3d Dept 2022], lv denied 38 NY3d 1132 [2022]), and his motion to dismiss the criminal contempt count was not directed at the error now raised on appeal ( see People v Barber , 182 AD3d 794, 795 [3d Dept 2020], lv denied 35 NY3d 1064 [2020]).

2021Likewise, his best evidence argument is unpreserved since no objections were made when either the victim or the mother testified to the text messages ( see People v Lofton , 226 AD2d 1082, 1082 [1996], lv denied 88 NY2d 1022 [1996]).

2021In these circumstances, we cannot conclude that defendant was deprived of meaningful representation ( see People v Porter , 184 AD3d at 1019; People v Forney , 183 AD3d at 1118 ). "[D]efendant's challenge to County Court's Sandoval compromise is unpreserved given his failure to object to the ruling prior to the close of the hearing" ( People v Shackelton , 177 AD3d 1163 , 1166 [2019], lv denied 34 NY3d 1162 [2020]; see People v Pittman , 160 AD3d 1130 , 1130 [2018], lv denied 31 NY3d 1151 [2018]).

2020However, "a defendant who presents evidence after a court has declined to grant a trial motion to dismiss made at the close of the People's case waives subsequent review of that [initial] determination" ( People v Hines , 97 NY2d 56, 61 [2001]).

2019Defendant similarly failed to preserve his challenge to County Court's Molineux ruling allowing evidence that defendant threatened to kill or harm the victims if they disclosed the abuse ( see People v Cayea , 163 AD3d 1279 , 1280 [2018], lv denied 32 NY3d 1109 [2018]), and, even if we were to review his claim, we would reject it ( see People v Maggio , 70 AD3d 1258, 1260 [2010], lv denied 14 NY3d 889 [2010]; People v Greene , 306 AD2d 639, 642 [2003], lv denied 100 NY2d 594 [2003]).

2019Specifically, defendant's challenge to County Court's Sandoval compromise is unpreserved given his failure to object to the ruling prior to the close of the hearing ( see People v McCoy , 169 AD3d 1260 , 1265 [2019], lv denied 33 NY3d 1033 [2019]; People v Pittman , 160 AD3d 1130 , 1130 [2018], lv denied 31 NY3d 1151 [2018]) and, in any event, we perceive no abuse of discretion in the ruling ( see People v Mould , 143 AD3d 1186, 1188 [2016], lv denied 28 NY3d 1187 [2017]).

2019Defendant similarly failed to preserve his challenge to County Court's Molineux ruling allowing evidence that defendant threatened to kill or harm the victims if they disclosed the abuse ( see People v Cayea , 163 AD3d 1279 , 1280 [2018], lv denied 32 NY3d 1109 [2018]), and, even if we were to review his claim, we would reject it ( see People v Maggio , 70 AD3d 1258, 1260 [2010], lv denied 14 NY3d 889 [2010]; People v Greene , 306 AD2d 639, 642 [2003], lv denied 100 NY2d 594 [2003]).

2018Defendant's further contention that he was deprived of a fair trial by improper comments made by the prosecutor during summation is not preserved for our review as defendant did not object to these comments at trial ( see People v Devictor-Lopez , 155 AD3d 1434 , 1436 n [2017]; People v Scippio , 144 AD3d 1184, 1187 [2016], lv denied 28 NY3d 1150 [2017]).

2018His contention that [*2]Supreme Court's Sandoval ruling was an abuse of discretion was not properly preserved for appellate review as he did not object at the close of the hearing ( see People v Stacconi , 151 AD3d 1395, 1397 [2017]; People v Ramos , 129 AD3d 1205, 1207 [2015], lv denied 26 NY3d 971 [2015]).

2018His contention that [*2]Supreme Court's Sandoval ruling was an abuse of discretion was not properly preserved for appellate review as he did not object at the close of the hearing ( see People v Stacconi , 151 AD3d 1395, 1397 [2017]; People v Ramos , 129 AD3d 1205, 1207 [2015], lv denied 26 NY3d 971 [2015]).