You are here: / THE MAJORITY CONCLUDED THE TRIAL JUDGE PROPERLY HANDLED ALLEGATIONS OF...

Search Results

/ ,

THE MAJORITY CONCLUDED THE TRIAL JUDGE PROPERLY HANDLED ALLEGATIONS OF RACIAL BIAS WHICH INVOLVED HALF THE JURORS IN THIS MURDER CASE; TWO JUSTICES DISSENTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the trial judge correctly and adequately handled allegations of racial bias among the jurors. The decision is detailed and comprehensive and cannot be fairly summarized here:

From the dissent:

We recognize that “a trial court’s investigation of juror misconduct or bias is a delicate and complex task” … . On this record, however, the disclosure of alleged racial bias harbored by approximately half of the members of the jury warranted, at the very least, a question posed to each of the members of the panel of whether they could perform their duties as jurors without bias or prejudice. We also conclude that, in its voir dire of juror No. 10, the court did not explore whether juror No. 10 harbored any racial prejudice toward Black people, a prerequisite to determining whether she, in fact, could be unequivocally fair and impartial in deliberations. Under these circumstances, the court should also have determined on the record “whether the juror’s statements created a substantial risk of prejudice to the rights of the defendant by coloring the views of the other jurors as well as her own” … . People v Wiggins, 2024 NY Slip Op 01659, Fourth Dept 3-22-24

Practice Pont: Here a juror alleged half the jurors exhibited racial bias. The majority held the judge properly handled the question and properly determined defendant would get a fair trial. There was a two-justice dissent which argued further questioning of the jurors was required.

 

/ ,

NEGLECT FINDINGS BASED ON MOTHER’S MENTAL ILLNESS AND INADEQUATE SHELTER, EDUCATION, HYGIENE OR CLOTHING NOT SUPPORTED BY THE EVIDENCE; CRITERIA EXPLAINED IN SOME DEPTH (FOURTH DEPT).

The Fourth Department, reversing Family Court, in a fact-specific decision which cannot be fairly summarized here, determined the proof did not support the finding mother neglected the child by providing inadequate shelter, education, hygiene or clothing. In addition, the finding mother neglected the child based on mental illness was not proven. The decision explains the level of proof needed for finding neglect in these contexts:

… [T]he Family Court Act defines a neglected child as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [the child’s] parent . . . to exercise a minimum degree of care . . . in supplying the child with adequate food, clothing, [or] shelter . . . though financially able to do so or offered financial or other reasonable means to do so” (Family Ct Act § 1012 [f] [i] [A]). The statute also provides that a parent is responsible for educational neglect when, under the same requisite conditions, the parent fails to supply the child with “adequate . . . education in accordance with the provisions of [the compulsory education part of Education Law article 65] . . . notwithstanding the efforts of the school district or local educational agency and child protective agency to ameliorate such alleged failure prior to the filing of the petition” … .

“The statute thus imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence” (… see Family Ct Act § 1046 [b] [i]). “First, there must be ‘proof of actual (or imminent danger of) physical, emotional or mental impairment to the child’ ” … . “In order for danger to be ‘imminent,’ it must be ‘near or impending, not merely possible’ ” … . “This prerequisite to a finding of neglect ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior” … . “Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care . . . This is an objective test that asks whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances . . . Critically, however, the statutory test is minimum degree of care—not maximum, not best, not ideal—and the failure must be actual, not threatened” … .Matter of Justice H.M. (Julia S.), 2024 NY Slip Op 01653, Fourth Dept 3-22-24

Practice Point: The criteria for a neglect finding are explained in some depth. Here the proof did not support a finding of neglect based on mother’s mental illness or inadequate shelter, education, hygiene or clothing.

 

/ ,

THE TRIAL TESTIMONY RENDERED THE COUNT DUPLICITOUS, NEW TRIAL REQUIRED (FOURTH DEPT).

The Fourth Department, reversing the conviction and ordering a new trial, determined the trial testimony rendered the count duplicitous:

“Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … . Here, count 2 of the indictment charged defendant with sexual abuse in the first degree regarding an alleged instance, occurring between July 2012 and January 2013, in which she subjected the victim to sexual contact when he was less than 11 years old. At trial, however, the victim testified to multiple acts of sexual contact during the relevant time frame, any one of which could serve as the sexual contact necessary to prove defendant’s guilt of count 2.

Because each act of alleged sexual contact constitutes “a separate and distinct offense” … , the victim’s testimony that numerous such acts occurred during the relevant time frame rendered count 2 of the indictment duplicitous. Indeed, ” ‘it is impossible to verify that each member of the jury convicted defendant for the same criminal act’ ” in connection with count 2 … . People v Zona, 2024 NY Slip Op 01652, Fourth Dept 3-22-24

Practice Point: If the indictment charges one incident during the described time-frame and the trial testimony reveals more than one incident, it is impossible to know whether the jury reached a unanimous verdict on any one incident.

 

/ , , ,

A RULING ON A MOTION TO DISMISS DEALS ONLY WITH THE SUFFICIENCY OF THE PLEADINGS AND DOES NOT CONSTITUTE THE LAW OF THE CASE WITH RESPECT TO A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FOURTH DEPT). ​

The Fourth Department, reversing the Court of Claims, determined the judge improperly refused to consider evidence submitted by defendants in opposition to claimant’s summary judgment motion citing the law of the case doctrine. The judge’s “law of the case” ruling, however, was based on her prior ruling on a motion to dismiss. Because a motion to dismiss addresses only the sufficiency of the pleadings, a ruling on a motion to dismiss is not the law of the case with respect to a subsequent summary judgment motion:

It is well settled that the law of the case doctrine “applies only to legal determinations that were necessarily resolved on the merits in a prior decision” … , and that a court’s order denying a motion to dismiss is “addressed to the sufficiency of the pleadings” and does not “establish the law of the case for the purpose of” motions for summary judgment … . We thus agree with defendants that the court erred in refusing to consider defendants’ proof in opposition to the motion … . Riley v State of New York, 2024 NY Slip Op 01647, Fourth Dept 3-22-24

Practice Point: A ruling on a motion to dismiss is not the law of the case for a subsequent summary judgment motion.

 

/ , ,

A SIROIS HEARING TO DETERMINE WHETHER WITNESSES ARE UNAVAILABLE TO TESTIFY BECAUSE OF INTIMIDATION IS A MATERIAL STAGE OF A TRIAL; DEFENDANT AND DEFENSE COUNSEL WERE EXCLUDED FROM THE HEARING; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing the conviction and ordering a new trial, determined the judge should not have conducted the Sirois hearing, which is a material stage of a trial, in the absence of defendant and defense counsel. The hearing determined two witnesses were unavailable to testify because of intimidation. Defense counsel was allowed to submit questions to be posed during the hearing:

… [A] new trial is warranted with respect to the criminal possession of a weapon count because he was denied his right to be present at a material stage of the trial (… see generally CPL 260.20). During the suppression hearing, allegations were made that defendant, or people acting at his behest, had threatened two witnesses to the underlying incident about testifying against defendant. The People, therefore, requested a Sirois hearing and sought a determination that the witnesses had been made constructively unavailable to testify at trial by threats attributable to defendant, allowing them to introduce at trial statements made by the witnesses that would otherwise constitute inadmissible hearsay … . * * *

The court erred in conducting the Sirois hearing without defendant or defense counsel present. “[A] defendant’s absence at a Sirois hearing has a substantial effect on [their] ability to defend the charges against [them] and, thus, a Sirois hearing constitutes a material stage of the trial” … . A “[d]efendant [is] entitled to confront the witness[es] against [them] at [such a] hearing and also to be present so that [the defendant can] advise counsel of any errors or falsities in the witness[es]’ testimony which could have an impact on guilt or innocence” … . People v Steele, 2024 NY Slip Op 01642, Fourth Dept 3-22-24

Practice Point; Here defendant and defense counsel were excluded from the Sirois hearing which determined two prosecution witnesses were unavailable to testify because of intimidation. Because the hearing is a material stage of the trial, defendant must be present. Allowing defense counsel to submit written questions was insufficient. A new trial was required.

 

/ , ,

A PRIOR RULING IN A PRIOR ACTION FINDING THAT THE WITHHELD DOCUMENTS WERE PROTECTED FROM DISCLOSURE DID NOT INDICATE THE SPECIFIC PRIVILEGE WHICH APPLIED TO EACH DOCUMENT; THEREFORE THE PRIOR RULING DID NOT TRIGGER THE COLLATERAL ESTOPPEL DOCTRINE AND THE DISCLOSURE OF DOCUMENTS MUST BE DETERMINED ANEW IN THE INSTANT ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a prior ruling in a prior action finding that withheld documents were protected from disclosure did not trigger the collateral estoppel doctrine in the instant action because the prior ruling did not indicate the specific privilege invoked for each document:

… [T]he court abused its discretion in summarily denying the motion on the basis that it had previously ruled that the withheld documents were protected from disclosure in a prior action involving the parties. Collateral estoppel bars relitigation of an issue when “the identical issue necessarily [was] decided in the prior action and [is] decisive of the present action, and . . . the party to be precluded from relitigating the issue [had] a full and fair opportunity to contest the prior determination” … . Preclusion of an issue occurs only if that issue was ” ‘actually litigated, squarely addressed and specifically decided’ ” in the prior action … . While in the prior action the court denied a motion to compel the identical documents contained in the privilege log, the court did not specifically address whether the withheld documents were protected and which protection, such as attorney-client privilege, applied to each document. Thus, there is no evidence that the identical issue, decisive in this action, was necessarily decided in the prior action … . Wiltberger v Allen, 2024 NY Slip Op 01635, Fourth Dept 3-22-24

Practice Point: Collateral estoppel applies only when the issues are identical. Here, even though the documents at issue were found to be privileged in the prior action, the precise privilege applied to each document was not described in the prior order. Therefore it is not clear the issues are identical in the instant proceeding, so the application of collateral estoppel to preclude disclosure is not available.

 

/ , ,

DEFENDANT WAS NOT GIVEN PRIOR NOTICE OF THE JUDGE’S SUA SPONTE DECISION TO ASSESS 25 POINTS FOR A RISK FACTOR WHEN THE SORA BOARD SUGGESTED FIVE AND THE PEOPLE AGREED TO FIVE; NEW HEARING ORDERED (FOURTH DEPT).

The Fourth Department, vacating the SORA risk-level assessment and remitting the matter for a new hearing, determined the defendant did not have notice of the judge’s sua sponte assessment of 25 points for risk factor 2, when both the SORA Board and the People recommended a five point assessment:

… [T]he court assessed 25 points under risk factor 2 even though the Board had recommended that five points be assessed and the People requested five points. Although the court stated during an appearance prior to the SORA hearing that “it does appear that the upward modification [sic] that was requested [in writing] by the People may be warranted in regards to the sexual intercourse factor,” the court misapprehended the nature of the People’s request for an upward departure, which plainly was not based on a disagreement with the Board’s recommendation under risk factor 2. In any event, the court did not grant an upward departure; instead, after determining at the hearing that only five points should be assessed under risk factor 2, the court later assessed 25 points based on an indication in the case summary that defendant stated at sentencing on the qualifying offense that he had consensual sexual intercourse with the victim.

Because defendant did not have notice that the court was considering a sua sponte assessment of additional points under risk factor 2, we “reverse the order, vacate defendant’s risk level determination, and remit the matter to [Supreme] Court for a new risk level determination, and a new hearing if necessary, in compliance with Correction Law § 168-n (3) and defendant’s due process rights” … . People v Acosta, 2024 NY Slip Op 01626, Fourth Dept 3-22-24

Practice Point: The judge in a SORA risk-level hearing cannot, sua sponte, increase the number of points assessed for a risk factor without prior notice to the defendant. Notice that the People will seek an upward departure does not constitute notice of increased points for a specific risk factor.

Similar issue and result where the People did not give notice of their intent to request a 10 point assessment for risk factor 12. People v Lostumbo, 2024 NY Slip Op 01639, Fourth Dept 3-22-24

​

​

/

ALTHOUGH THE BUILDING IS OWNED BY A NOT-FOR-PROFIT CORPORATION WHICH RAISES FUNDS FOR HEALTHCARE SERVICES, THE BUILDING IS LEASED TO A FOR-PROFIT CORPORATION WHICH PROVIDES DIALYSIS; THE LEASED BUILDING, THEREFORE IS NOT EXEMPT FROM PROPERTY TAX PURSUANT TO RPTL 420-A (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a three-judge dissenting opinion, determined the property at issue, which is leased by a for-profit corporation, is not entitled to exemption from property taxes pursuant to Real Property Tax Law (RPTL) 420-a:

Petitioner Samuel and Bertha Schulman Institute for Nursing and Rehabilitation Fund, Inc. (Schulman), is a federally tax-exempt, New York not-for-profit corporation, which fundraises and manages assets in support of the healthcare purpose of non-parties Schulman and Schachne Institute for Nursing and Rehabilitation, Inc., and Brookdale Hospital Medical Center. Starting in 1995, Schulman leased to petitioner Brookdale Physicians’ Dialysis Associates, Inc. (Brookdale Dialysis) portions of a building Schulman owns in New York City. Brookdale Dialysis is a for-profit New York corporation that used the building to provide dialysis services for a fee. Under the lease Brookdale Dialysis paid $24,217.08 per month in rent to Schulman and was responsible for any property taxes that might become due during the tenancy. * * *

Petitioners argue that the property is exempt under RPTL 420-a (1) (a) because the building is used exclusively for its intended charitable purposes in that its dialysis services are vital and necessary to the charitable missions of Schulman and non-parties Brookdale Hospital and the Nursing Institute. However, the exempt purpose at issue here is that of the property owner—Schulman—and its purpose is to raise funds, not to provide dialysis services, or even medical services more generally. It is true that Brookdale Hospital and the Nursing Institute provide health care services, but still, the exemption is for Schulman’s property. And to the extent Schulman supports the health care efforts of these two entities it does so by fundraising, not by providing direct health care services. If Schulman engaged in its fundraising efforts in the building, then the exemption would apply to any portion so used, but Schulman vacated the premises during Brookdale Dialysis’ tenancy. Matter of Brookdale Physicians’ Dialysis Assoc., Inc. v Department of Fin. of the City of N.Y., 2024 NY Slip Op 01583, CtApp 3-21-24

Practice Point: A building owned by a not-for-profit corporation but leased to a for-profit corporation is not exempt from property tax pursuant to RPLT 420-a.

 

/ ,

CONSULT THIS OPINION FOR IN-DEPTH DISCUSSIONS OF WHEN POSTREADINESS DELAY SHOULD BE ATTRIBUTED TO THE PEOPLE; THE DISSENT ARGUED THIS RULING UPENDS DECADES OF PRECEDENT BY ATTRIBUTING A DELAY ATTRIBUTABLE TO THE COURT TO THE PEOPLE, RESULTING IN A SPEEDY-TRIAL VIOLATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over an extensive three-judge dissenting opinion, reversed defendant’s misdemeanor (reckless driving) conviction on speedy-trial grounds. The majority and dissenting opinions are comprehensive and cannot be fairly summarized here. The opinions should be consulted for in depth discussions of how postreadiness delays should be calculated. The dissent argued that decades of precedent have been upended by the majority’s ruling because postreadiness delay which was attributable to the court (the People asked for a 12-day adjournment and the court imposed a 43-day adjournment) was attributed to the People:

Here … the People filed an off-calendar statement of readiness, were not ready on three successive trial dates, and failed to provide any explanation despite the court’s invitation to do so, and despite the opportunity to provide an explanation in their opposition to [defendant’s] 30.30 motion. Indeed, even in their papers to this Court, the People offered no explanation for any of the times they were not ready on a previously scheduled trial date to which they had assented. Surely that conduct does not serve the legislature’s intended purpose of “discourag[ing] prosecutorial inaction” … . Instead, the People’s conduct fits squarely within our dissenting colleagues understanding of postreadiness delays—they are “charged to the People only when the delay is attributable to their inaction and directly implicates their ability to proceed to trial” … .

From the dissent:

The majority’s opinion upends [the] common-sense understanding that courts and parties have relied on for decades by attributing the court’s postreadiness delay to the People. Applied here, this new rule means the People are held responsible for 43 days of postreadiness delay when they requested only a 12-day adjournment and the additional 31 days were undisputedly caused by court—all because the prosecutor appearing did not know the underlying reason for the People’s 12-day adjournment request. People v Labate, 2024 NY Slip Op 01582, CtApp 3-21-24

Practice Point: This opinion should be consulted for in-depth discussions of when postreadiness delay is attributed to the People. The dissent argued decades of precedent have been upended by this ruling because postreadiness delay which should have been attributed to the court was attributed to the People, resulting in a speedy-trial violation.

 

/ , , , , ,

RECORDS ASSOCIATED WITH AN ARREST AND PROSECUTION AND PRISON MEDICAL RECORDS ALLEGEDLY RELATING TO AN ATTACK BY CORRECTION OFFICERS WERE NOT SUFFICIENT TO DEMONSTRATE THE RESPONDENT CITY HAD ACTUAL TIMELY NOTICE OF THE ASSOCIATED CLAIMS; LEAVE TO FILE LATE NOTICES OF CLAIM SHOULD NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the Appellate Division, over a two-judge dissent in one case (Jaime) and concurrences in the other (Orozco), determined that the petitions for leave to file a late notice of claim, brought by the same attorney for the two petitioners, should not have been granted. Orozco alleged false arrest and malicious prosecution and Jaime alleged an attack by corrections officers. In neither case was the petition supported by an affidavit from the petitioner. The records associated with Orozco’s arrest and prosecution did not prove the respondent (NYC) had timely actual knowledge of the claim. Because Jaime did not file a grievance about the alleged attack by correction officers and did not provide an affidavit in support of the petition for leave to file late notice, there was no proof the City had actual timely knowledge of the claim:

Insofar as Orozco argued that the City would not be substantially prejudiced by the late filing because it acquired timely actual knowledge, Orozco’s failure to establish actual knowledge is fatal. Orozco’s further argument—that the City would not be substantially prejudiced because it will have to expend resources to defend against his 42 USC § 1983 claims—misapprehends the purpose served by the notice of claim requirement. … [T]he purpose is to afford the municipality the opportunity to investigate the claims and preserve evidence … , not simply to shield municipalities from litigation costs. Moreover, this argument understates the advantage of facing only a section 1983 claim that can be defended on qualified immunity grounds … , as opposed to facing that claim plus additional state law claims. * * *

The City conceded at oral argument that an incarcerated person might not file a grievance concerning a violent attack by a correction officer for fear of reprisal, a fear that may constitute a reasonable excuse for late service of a notice of claim. It would, however, be entirely speculative for us to consider that possibility here given the absence of any relevant evidence. Were Jaime in fact operating under such a fear, he could have submitted an affidavit attesting to the fact. That affidavit would have constituted evidence supporting an arguably reasonable excuse, which might provide at least some support for a court’s discretionary determination to allow late service.

Neither the allegation that Jaime sustained injuries in the attacks for which he sought medical attention in the infirmary, nor the allegation that the DOC created or maintained records relating to those injuries, establishes that the City acquired actual knowledge of the essential facts constituting the claim … . Matter of Jaime v City of New York, 2024 NY Slip Op 01581, CtApp 3-21-24

Practice Point: In these two cases the evidence of an arrest and prosecution in one case and an attack by correction officers in the other was insufficient to demonstrate the respondent City had actual timely knowledge of the facts underlying the claims against the City. The petitioners should not have been granted leave to file late notices of claim.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy