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THE JUDGE DID NOT MAKE EVEN A “MINIMAL INQUIRY” WHEN DEFENDANT STATED HE WANTED ANOTHER ATTORNEY; DEFENDANT DID NOT ABANDON THE ISSUE BY NOT RAISING IT AGAIN WHEN HE PLED GUILTY; PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, in a full-fledged opinion by Judge Rodriguez, over a dissenting opinion, determined defendant was not afforded an adequate opportunity to explain his request for a new attorney. Defendant attempted to raise the issue at an early court appearance, but the judge made no inquiry. Subsequently, without raising the issue again, defendant pled guilty while represented by the same attorney:

“Where a defendant makes a seemingly serious request for reassignment of counsel, the court must make at least a ‘minimal inquiry’ as to ‘the nature of the disagreement or its potential for resolution’ ” … . Generally, to trigger the “minimal inquiry” requirement, the defendant must provide specific factual allegations … .

However, the “minimal inquiry” requirement presumes a fair opportunity to be heard. The law, in other words, does not permit the court to satisfy its obligations in this area by refusing the defendant an opportunity to record a potentially serious request. Thus, if the court denies the defendant’s “request for substitution of counsel without conducting any inquiry whatsoever, and without permitting defendant to explain, either orally or in writing, why such an inquiry might be necessary,” the defendant’s conviction should be vacated … .

Here, the court summarily denied defendant’s application without giving him a fair opportunity to be heard. Specifically, when defendant first asked to speak, the court ignored him altogether. When defendant made a second attempt, the court refused to permit him to address the issue and instead instructed him to “[t]alk to [his] lawyer.” As the People acknowledge, defendant had to interrupt the proceeding on his third attempt to communicate even his most elemental “need [for] a new attorney.” People v Dinkins, 2026 NY Slip Op 01742, First Dept 3-24-26

Practice Point: Consult this opinion for insight into the inquiry which must be made by a judge when a defendant requests a new attorney.

 

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THE FACT THAT DEFENDANT WAS PARKED IN A HIGH CRIME AREA NEAR AN APARTMENT COMPLEX AND THE FILED “TRESPASS AFFIDAVIT” BY AN APARTMENT PROPERTY MANAGER, REQUESTING THAT ANYONE ON THE PROPERTY WHO WAS NOT A TENANT BE ARRESTED FOR TRESPASS, DID NOT PROVIDE THE POLICE WITH A “PARTICULARIZED” REASON FOR APPROACHING THE DEFENDANT TO REQUEST INFORMATION; THE COCAINE AND HANDGUN SEIZED UPON THE DEFENDANT’S ARREST SHOULD HAVE BEEN SUPPRESSED; THE INDICTMENT WAS DISMISSED (FOURTH DEPT).

The Fourth Department. suppressing evidence seized upon defendant’s arrest and dismissing the indictment. over a two-justice dissent, determined that the police did not have particularized information which justified approaching defendant’s car which was parked near an apartment complex. There was a “trespass affidavit” by an apartment property manager on file with the police department which requested that any person who was not a tenant be arrested for trespass. The police approached defendant, who, it turned out, was a tenant. But based on an officer’s observation of a bag containing a tan substance inside the car, the officers ordered defendant out the car, searched the defendant’s person and car, and seized cocaine and a handgun:

… [T]he officer’s testimony that the apartment complex was in a high-crime area did not justify approaching defendant. The trespass affidavit failed to afford the officers any more particularized reason for approaching defendant. Therein, although the property manager for the apartment complex stated generally that there “was reason to believe that persons are congregating on the . . . property . . . [who] do not reside at said property,” there was no allegation in the trespass affidavit that the property was, for example, “plagued by illegal drug trade” or gang violence … . Indeed, the property manager did not specify any prior or ongoing incidents of criminal activity on the premises, but instead expressed a general belief that persons might be “congregating on the property,” which is a multi-building residential apartment complex, “without [the property manager’s] permission.” The property manager nonetheless also acknowledged in the trespass affidavit that non-residents were often permissibly on the property, such as guests of tenants. Thus, defendant was not “parked at an establishment around which criminal activity was known to occur” … . Further, the officers observed defendant momentary idling in a vehicle in a publicly accessible parking lot on a summer evening outside a residential apartment complex … , not “in a private space restricted by signage and a lock” … . Thus, nothing in the officers’ observation of defendant’s conduct, even considered in light of the assertions in the trespass affidavit, “provided a particularized reason to request information” … . People v Robinson, 2026 NY Slip Op 01693, Fourth Dept 3-20-26

Practice Point: Here the police did not have a “particularized reason” for approaching defendant’s parked car near an apartment complex. The facts that (1) the defendant was parked in a high crime area and (2) an apartment-complex property manager had filed a “trespass affidavit” with the police was not enough to allow the police to approach the defendant to request information.

 

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THE RECORD SUPPORTED AN ORDER MAKING SPECIAL FINDINGS TO ALLOW A JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) TO AVOID DEPORTATION TO GUATEMALA (FOURTH DEPT). ​

The Fourth Department, reversing Surrogate’s Court, determined the petition for an order making special findings to allow a juvenile to petition for special immigrant juvenile status (SIJS) such that the child can remain in the US and avoid deportation to Guatemala:

The child simultaneously moved for the issuance of an order making special findings that, among other things, the child’s reunification with his parents is not viable due to parental neglect, abandonment, or abuse, and it would not be in his best interests to be returned to Guatemala, his previous country of nationality and last habitual residence. Although Surrogate’s Court granted the guardianship petition, following a subsequent hearing, the Surrogate issued the order on appeal denying the child’s motion for an order making the requisite declaration and special findings on the basis that the child presented “no credible testimony . . . of abuse, abandonment or neglect or that reunification with one or both of his parents is not viable.” * * *

… [T]he evidence established that the child is under the age of 21, unmarried, and a resident alien physically present in the United States and, inasmuch as the Surrogate appointed the child’s brother as his guardian, the child has been legally committed to or placed under the custody of an individual appointed by a juvenile court located in the United States within the meaning of 8 USC § 1101 (a) (27) (J) (i) … .

… [W]e conclude that reunification of the child with his parents is not viable due to parental neglect (see generally Family Ct Act § 1012 [f] [i]). The record demonstrates that the child’s parents did not provide the child with medical care, even after he sustained a serious injury … , encouraged the child to drop out of school and work on the family farm at the age of 15 … , failed to protect the child from gang violence in Guatemala … . … [I]t would not be in the best interests of the child to return to Guatemala, his previous country of nationality and country of last habitual residence … . Matter of Juarez, 2026 NY Slip Op 01686, Fourth Dept 3-20-26

 

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A HOSPITAL HAS A DUTY TO RETAIN AN INTOXICATED PATIENT WHO HAS BEEN ADMITTED INVOLUNTARILY PURSUANT TO THE MENTAL HYGIENE LAW IF THE PATIENT IS INCAPACITATED TO A DEGREE THERE WAS A LIKELIHOOD OF HARM TO THE PATIENT OR OTHERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether defendant hospital breached its duty to retain the decedent for emergency treatment because decedent was incapacitated by alcohol to a degree there was a likelihood of harm to decedent or others:

A hospital does not owe an intoxicated patient, who went to the hospital voluntarily, a duty to prevent that patient from leaving the hospital against medical advice even when that patient has been admitted to the hospital for medical treatment … . By contrast, however, the decedent here was admitted involuntarily (see Mental Hygiene Law former § 22.09 [e]). Defendant therefore had a duty to retain decedent for emergency treatment if decedent was incapacitated by alcohol or substances to such a degree that there was a likelihood to result in harm to decedent or others, as those terms are defined under Mental Hygiene Law former § 22.09 … .

Assuming, arguendo, that defendant met its burden of demonstrating that it did not breach its duty to ensure that decedent was no longer incapacitated to the degree that there was a likelihood to result in harm to decedent or others, we conclude that plaintiff raised an issue of fact. Plaintiff’s expert opined that, under the circumstances and “especially in such proximity to the events that occurred in the hospital in the hours prior to discharge,” it was a breach of the standard of care to allow decedent to be discharged … . Guadagno v Erie County Med. Ctr. Corp., 2026 NY Slip Op 01698, Fourth Dept 3-20-26

Practice Point: A hospital has a duty to retain an intoxicated patient who has been admitted involuntarily if the patient is incapacitated to a degree there is a likelihood of harm to the patient or others. That duty is not triggered by an intoxicated patient who went to the hospital voluntarily.

 

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ONE PLAINTIFF-TENANT TESTIFIED HE MADE SEVERAL COMPLAINTS TO THE LANDLORD DEFENDANTS ABOUT THE TENANT WHO SET FIRE TO THE APARTMENT BUILDING, INFORMING THE DEFENDANTS THAT THE TENANT THREATENED “TO KILL EVERYONE” IN THE BUILDING AND WAS SEEN CARRYING GASOLINE TANKS INTO THE BUILDING; THE DEFENDANT LANDLORDS DID NOT HAVE A DUTY TO PREVENT THE TENANT FROM STARTING THE FIRE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the landlord defendants did not have a duty to investigate, monitor, or control a tenant who set fire to the five-story building injuring the plaintiff-tenants:

One of the plaintiffs testified that he made several complaints to defendants concerning the tenant’s behavior before the incident. Specifically, he reported to defendants that the tenant threatened “to kill everyone” in the building and was seen carrying gasoline tanks into the building. The motion court found that this testimony “raise[d] issues of fact as to whether defendants failed to take minimal measures to investigate the presence of gasoline in the apartment, and to protect the occupants from the risk of fire arising out of the presence of gasoline.”

The motion court erred in applying the “minimal precaution” standard set forth in negligent security cases because the assailant here was not a third-party nontenant … . Rather, he was a tenant in the building who was lawfully permitted to be there at the time of the fire. The appropriate test is, therefore, whether defendants lacked the “authority, ability, and opportunity to control” the tenant’s actions such that they had a duty to prevent him from starting the fire …  . Applying that standard to the facts here, defendants had no authority or ability to evict the tenant under the lease or New York law prior to the fire … . Moreover, plaintiffs failed to establish a clear basis under New York law for defendants to investigate, monitor, or control the tenant which could have prevented him from setting the fire … . Accordingly, defendants established their entitlement to summary judgment on the basis of their inability to prevent the tenant from starting the fire that caused plaintiffs’ injuries. Molina v Appula Mgt. Corp., 2026 NY Slip Op 01603 First Dept 3-19-26

Practice Point: The negligent-security-minimal-precaution standard of care for landlords applies only to security re: the actions of non-tenants. Here it was a tenant who set fire to the apartment building and injured other tenants. The appropriate test for the landlord’s duty re: a tenant’s actions is whether the landlord has the authority, ability, and opportunity to control the tenant’s actions under the lease or New York law, which was not the case here.

 

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MOTHER’S MENTAL ILLNESS AND HER REQUEST FOR RESPITE CARE BECAUSE SHE WAS OVERWHELMED DID NOT SUPPORT A NEGLECT FINDING; THERE WAS NO EVIDENCE OF AN IMMINENT RISK TO THE CHILDREN (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence of mother’s mental illness did not support the finding that she neglected the children:

The court’s determination that the mother neglected the subject children was not supported by a preponderance of the evidence … . Neglect occurs when a child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as the result of the parent’s failure to “exercise a minimum degree of care” (Family Ct Act § 1012 [f][i]). “While parental neglect may be based on mental illness, proof of a parent’s mental illness alone will not support a finding of neglect, unless it is shown that the parent’s condition resulted in imminent danger to the child” … .

Although the mother testified that she was diagnosed with anxiety and depression, the record does not support a finding of “a link or causal connection” between the mother’s diagnoses and any impairment or imminent danger of impairment to the children … . The sole evidence of actual impairment was a burn on one of the children, and the uncontroverted testimonial and documentary evidence establish that the injury was accidental and that the mother provided care … .

Further, petitioner failed to establish how the mother’s mental health diagnoses caused the children to be in imminent danger of being impaired. The mother openly acknowledged her mental health diagnoses and treatment … . The record demonstrates that the mother was at all relevant times under the care of a psychiatrist and was compliant with the psychiatrist’s prescribed medications. ….

The mother’s request for respite care was also not a proper basis for finding imminent risk. … [S]he was feeling overwhelmed with caring for her three children and was unwilling or unable to care for and supervise them any longer. The miscellaneous information section states that the mother said she did not want her children any longer and wanted ACS to take them … because she was feeling overwhelmed. … The mother explicitly testified that she was not afraid she would “do something” to hurt her children or herself. Matter of Ja.W., 2026 NY Slip Op 01623, First Dept 3-19-26

Practice Point: Here there no evidence that mother presented an imminent risk of impairment to her children. Mother’s acknowledged mental illness, for which she was receiving treatment, and her request for respite care because she was feeling overwhelmed did not amount to neglect.

 

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DEFENDANT, BY FIRING HIS ATTORNEY AND REFUSING TO BE PRESENT AT TRIAL, WAIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND HIS RIGHT TO BE PRESENT AT HIS TRIAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a concurrence and an extensive dissent, determined defendant, by firing his attorney and refusing to be present during the trial, waived his right to effective assistance of counsel and his right to be present at his trial. The court further determined that the consecutive sentences for two counts of criminal possession of a weapon were improper because both offenses arose from the same act of possession:

“Waiver is a knowing, intelligent, and voluntary relinquishment of a known right” … . Like other fundamental rights, a defendant’s right to effective assistance of counsel may be waived … . We have explained that “[a]n accused awaiting trial . . . has only two choices regarding legal representation—proceed with counsel or waive the protection of the Sixth Amendment and proceed pro se” … . Accordingly, when a defendant “refuse[s] self-representation and restrict[s] the participation of counsel . . . [they] hav[e] voluntarily waived the right to the effective assistance of counsel” … .

Whether the waiver of a fundamental right is valid “depend[s], in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused” … . “In many instances, the requisite affirmative showing that . . . [a] right[ ] ha[s] been knowingly, voluntarily, and intelligently waived will include a direct colloquy between the court and the defendant” … . We have also long held that a defendant may waive certain fundamental rights by their conduct, most notably in the context of the right to be present … . In determining whether such a waiver occurred, relevant circumstances include the warnings provided by the trial court, the defendant’s actions in response, and whether, in light of the defendant’s conduct, the trial court could practicably have administered additional warnings or attempted to secure an oral waiver. * * *

In light of the trial court’s many warnings to defendant and defendant’s obstructive behavior in response, there is record support for the conclusion that, by his conduct, defendant waived the right to effective assistance of counsel. A trial court must be cautious not to conflate waiver of the right to be present at trial with waiver of the right to effective assistance of counsel. These rights are separate, and a trial court has distinct duties to ensure the validity of a defendant’s waiver of each. However, in certain circumstances, as in this case, the same conduct may amount to a waiver of both rights. People v Lewis, 2026 NY Slip Op 01588, CtApp 3-19-26

Practice Point: A defendant by his behavior (here firing his attorney and walking out of the trial), in the face of sufficient warnings by the judge, may waive both the right to effective assistance of counsel and the right to be present at the trial.

 

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THE ADMISSION OF EVIDENCE OF DEFENDANT’S PRIOR POSSESSION OF DRUGS TO PROVE CONSTRUCTIVE POSSESSION OF DRUGS FOUND IN A SHARED APARTMENT WAS REVERSIBLE ERROR; THE PRIOR POSSESSION CONVICTION STEMMED FROM DRUGS FOUND IN DEFENDANT’S VEHICLE, TWO YEARS BEFORE; THEREFORE THE PRIOR CRIME WAS NOT LOGICALLY CONNECTED TO ANY ISSUE IN THE CASE; THE EVIDENCE WAS ERRONEOUSLY ADMITTED SOLELY TO PROVE DEFENDANT’S PROPENSITY TO POSSESS DRUGS (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined the evidence of defendant’s prior possession of drugs found in his vehicle two years before was erroneously admitted to prove defendant’s constructive possession of drugs found in a shared apartment:

Generally, evidence of a defendant’s prior possession of drugs is inadmissible at trial to show their intent to sell drugs or knowing possession of drugs on another occasion … . This follows from our longstanding Molineux rule, which provides that “evidence of a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant’s propensity to commit the crime charged” … . When evidence of prior uncharged crimes or misconduct is logically connected to some specific material issue in the case—such as intent, motive, knowledge, common scheme or plan, or identity of the defendant—the evidence falls under an exception to the Molineux rule, and a court may admit the evidence if its probative value outweighs its potential for prejudice to the defendant … .

Here, because the People’s evidence of a prior incident involving defendant’s possession of drugs was not logically connected to any specific material issue in this drug possession case, apart from defendant’s propensity for possessing drugs, the trial court erred in admitting that evidence. Inasmuch as this error was not harmless, we reverse and remit for defendant to receive a new trial. * * *

The main issue at trial was whether defendant had constructive or knowing possession of the contraband distributed throughout three rooms in the apartment. We agree with the dissenting Justices below that defendant’s possession of cocaine in his car in 2017 was not relevant to that issue. The two incidents involved different locations, different circumstances, different theories of possession, and took place around two years apart. People v Henderson, 2026 NY Slip Op 01627, CtApp 3-19-26

Practice Point: Here defendant’s conviction for possession of drugs found in his vehicle was admitted to prove he had constructive possession of drugs found in a shared apartment two years later. Because the prior crime evidence was not connected to any issue in the case on trial other than defendant’s propensity to possess drugs, it was reversible error to admit it.

 

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NEW YORK’S MARIHUANA REGULATION AND TAXATION ACT (MRTA) IS NOT PREEMPTED BY THE FEDERAL CONTROLLED SUBSTANCES ACT (CSA) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined New York’s Marihuana Regulation and Taxation Act (MRTA) which allows the sale and use of marihuana, is not preempted by the federal Controlled Substance Act, which does not allow the sale and use of marihuana:

… [W]e turn to petitioners’ contention that the challenged regulations promulgated under MRTA — which authorizes the sale, use and distribution of marihuana — create a positive conflict with the CSA prohibiting these exact actions. We find that no such conflict exists. Consistent with the main objectives of the CSA, the legislative intent behind MRTA was to, among other things, “regulate, control, . . . reduce the illegal drug market and reduce violent crime, reduce participation of otherwise law-abiding citizens in the illicit market . . . [and] protect the public health, safety and welfare of the people of the state” … . In doing so, the Legislature specifically provided that nothing in MRTA was “to require any individual to engage in any conduct that violates federal law or to exempt anyone from any requirement of federal law or pose any obstacle to the federal enforcement of federal law” … . Each of the challenged parts 113, 128 and 129 within title 9 of the NYCRR further these principles by regulating the legitimate and illegitimate handling of marihuana by setting specific restrictions on prescribers, manufacturers and retailers — including, as specifically challenged by petitioners, how medical and adult-use marihuana could be labeled, advertised and marketed … . When considered through the lens of a conflict preemption analysis, although petitioners present several instances where they claim there is an impossibility between federal and state law, these are merely hypothetical or potential conflicts, as neither MRTA nor the challenged regulations pose any requirements on an individual or entity to manufacture, distribute or possess marihuana … . Matter of Cannabis Impact Prevention Coalition, LLC v Hochul, 2026 NY Slip Op 01573, Third Dept 3-19-26

Practice Point: Consult this opinion for a cogent summary of the criteria for federal preemption of a state law.​

 

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ALTHOUGH THE COURT FOUND THAT THE DEPUTY DID NOT SOUND HER AIR HORN BEFORE THE INTERSECTION COLLISION WITH PLAINTIFFS’ VEHICLE, THERE WAS SUFFICIENT EVIDENCE THAT THE DEPUTY TOOK PRECAUTIONS BEFORE ENTERING THE INTERSECTION; THEREFORE THE COUNTY DEMONSTRATED THE DEPUTY DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS IN VIOLATION OF VEHICLE AND TRAFFIC LAW 1104 (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Wilson, over an extensive dissent, determined the county was entitled to summary judgment in this negligence suit stemming from an intersection accident involving a sheriff’s deputy (Wong) who was responding to an emergency call. Although the court found that Wong did not sound her air horn prior to the collision with plaintiffs’ (Granaths’) car, the evidence demonstrated Wong did not act with reckless disregard for the safety of others:

It is undisputed that, before proceeding through the intersection, Deputy Fong slowed down, came to a complete stop at least once, observed northbound traffic, waited for that traffic to yield to her, and turned on her overheard lights. The Granaths contend that a jury could nonetheless find that Deputy Fong exhibited reckless disregard for the safety of others by failing to activate her air horn or siren; declining to call in a “Code 77” as required by MCSD [sheriff’s department] policy; and proceeding into the intersection despite having an obstructed view of southbound traffic.

We agree with the Appellate Division that defendants met their initial burden on their summary judgment motion and that, in opposition, the Granaths failed to raise a material triable issue of fact. Even assuming Deputy Fong failed to activate her air horn or siren, call in a “Code 77,” or observe southbound traffic—either because her view was obstructed or she neglected to look to her right—taken together with the actions she undisputably did take—slowing down, stopping, activating her emergency lights and proceeding only once she observed northbound traffic yield to her—we cannot conclude that Deputy Fong, with “conscious indifference to the outcome,” “reckless[ly] disregard[ed] . . . a highly probable risk of harm” … . Granath v Monroe County, 2026 NY Slip Op 01586, CtApp 3-19-26

Practice Point: Consult this opinion for insight into the meaning of “reckless disregard for the safety of others” in the context of an intersection traffic accident involving a sheriff’s deputy responding to an emergency call.

 

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