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THE TRIAL JUDGE DID NOT ENSURE THAT DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL WAS KNOWING AND INTELLIGENT, CRITERIA EXPLAINED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge did not ensure the pro se defendant was aware of the risks of representing himself or the benefits of having an attorney:

… [T]he court failed to conduct the requisite inquiry before allowing the defendant to proceed pro se and the record does not reveal that the defendant was aware of the disadvantages of representing himself or the benefits of having an attorney … . A court must determine that the defendant’s waiver of the right to counsel is made competently, intelligently, and voluntarily before allowing that defendant to represent himself or herself … . To make that evaluation, the court “must undertake a ‘searching inquiry’ designed to ‘insur[e] that a defendant [is] aware of the dangers and disadvantages of proceeding without counsel'” … . The court’s inquiry “must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” … .

Here, the record does not demonstrate that the Supreme Court inquired about the defendant’s pedigree information, aside from the fact that he did not have a law license, or that the court ascertained whether the defendant was aware of the risks inherent in proceeding without a trial attorney and the benefits of having counsel represent him at trial … . The court failed to ensure that the defendant understood the potential sentence that could be imposed or the dangers and disadvantages of self-representation … . The court neither “tested defendant’s understanding of choosing self-representation nor provided a reliable basis for appellate review” … . In addition, the defendant continually engaged in disruptive or obstreperous conduct … . Under these circumstances, the defendant’s purported waiver of his right to counsel was ineffective and the defendant is entitled to a new trial … . People v Hall, 2025 NY Slip Op 06727, Second Dept 12-3-25

Practice Point: Consult this decision for insight into how a judge, faced with a defendant who wishes to represent himself, should handle the “searching Inquiry” to ensure the defendant is aware of the risks.​

 

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THE PROBATION CONDITION REQUIRING DEFENDANT TO CONSENT TO SEARCHES FOR DRUGS AND WEAPONS WAS NOT REASONABLY RELATED TO HIS REHABILITATION FOR DISORDERLY CONDUCT; THE APPEAL WAIVER WAS INVALID (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was not valid and went on to find that the probation condition requiring defendant to consent to “search of his person, vehicle, and place of abode, and the seizure of any illegal drugs, drug paraphernalia, gun/firearm, or other weapon or contraband” was not reasonably related to his rehabilitation for disorderly conduct:

… [The record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The Supreme Court’s oral explanation of the appeal waiver and its consequences was unclear and incomplete, and the written waiver cannot be relied upon to cure the deficiency because “the court did not ascertain on the record whether the defendant had read the written waiver, discussed it with his attorney, or was aware of its contents” … .

… [T]he conditions of probation “shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him [or her] to do so” (Penal Law § 65.10[1]). In addition to specific conditions enumerated in the statute, the court may, in its discretion, impose “any other conditions reasonably related to [the defendant’s] rehabilitation” … and “any other reasonable condition as the court shall determine to be necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant” … . Therefore, sentencing courts may require a defendant to consent to searches by his or her probation officer for weapons, illegal drugs, or other contraband so long as the condition is “individually tailored in relation to the offense” and “the defendant’s particular circumstances, including his or her background, history, and proclivities” … .

Here, the defendant’s only prior conviction was for disorderly conduct, a violation … , the offense at issue did not involve the use of a weapon or alcohol or other substances, and the defendant was not under the influence of any substances at the time of the offense. … [T]he Supreme Court improvidently exercised its discretion in imposing Condition No. 28, as that condition “was not individually tailored in relation to the offense, and was not, therefore, reasonably related to the defendant’s rehabilitation, or necessary to ensure that the defendant will lead a law-abiding life” … . People v Gibson, 2025 NY Slip Op 06724, Second Dept 12-3-25

Practice Point: Here the defendant was convicted of disorderly conduct which did not involve a weapon or drugs. The probation condition requiring defendant to submit to searches for drugs or weapons was struck.

 

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THE PROBATION CONDITION REQUIRING DEFENDANT TO SUPPORT DEPENDENTS AND MEET FAMILY RESPONSIBILITIES WAS NOT REASONABLY RELATED TO DEFENDANT’S REHABILITATION; DEFENDANT WAS CONVICTED OF ASSAULT (SECOND DEPT).

The Second Department, striking the probation condition requiring defendant to “support dependents and meet other family responsibilities’, determined the condition was not reasonably related to the defendant’s rehabilitation. Defendant was convicted of assault:

Pursuant to Penal Law § 65.10(1), the conditions of probation “shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or assist him [or her] to do so” … . “In Penal Law § 65.10(2), the Legislature set forth a list of conditions intended to be rehabilitative” … , including the condition that a defendant “[s]upport his [or her] dependents and meet other family responsibilities” (Penal Law § 65.10[2][f]). “The statute ‘quite clearly restricts probation conditions to those reasonably related to a defendant’s rehabilitation'” … . All enumerated probation conditions under Penal Law 65.10 must be “tailored to the particular defendant’s case” … .

Under the circumstances of this case, the Supreme Court improperly imposed Condition No. 14. This condition was “not individually tailored in relation to the offense and therefore, was not reasonably related to the defendant’s rehabilitation or necessary to insure that he will lead a law-abiding life” … . People v Aldea, 2025 NY Slip Op 06716, Second Dept 12-3-25

Practice Point: Courts are striking the probation condition requiring defendant to support dependents when it is not related to the underlying offense, assault in this case.​

 

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PLAINTIFF WAS INJURED WHEN AN UNPROTECTED TRENCH CAVED IN AND COLLAPSED; THE ABSENCE OF ANY SAFETY DEVICES, LIKE A SAFETY RAILING, VIOLATED LABOR LAW 240(1) AND 241(6) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) and 241(6) causes of action. Plaintiff was directed to retrieve lumber which was near an unprotected trench. He was injured when the trench caved in and collapsed. The facts that the trench was 10 feet deep, unshored, and without planking, barricades or guardrails demonstrated plaintiff was not provided with an adequate safety device in violation of Labor Law 240(1). The same omissions violated 12 NYCRR 23-1.7(b)(1):

… [T]he plaintiff demonstrated, prima facie, that the defendants violated Labor Law § 240(1) by failing to provide the plaintiff with an adequate safety device and that this violation was a proximate cause of his injuries ….* * *

“To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case” … . Here, the Labor Law § 241(6) cause of action was predicated, inter alia, on a violation of 12 NYCRR 23-1.7(b)(1), “which mandates that holes or hazardous openings at construction sites into which a person may step or fall be guarded by a substantial cover fastened in place or by the installation of a safety railing” … . O’Donnell v Rocklyn Ecclesiastical Corp., 2025 NY Slip Op 06714, Second Dept 12-3-25

Practice Point: If a worker is injured when an unprotected trench caves in, both Labor Law 240(1) and 241(6) have been violated.

 

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PLAINTIFF HVAC CONTRACTOR WAS NOT LICENSED TO DO HOME IMPROVEMENT IN NASSAU COUNTY; THEREFORE THE CONTRACTOR COULD NOT SUE FOR BREACH OF CONTRACT AND COULD NOT ENFORCE A MECHANIC’S LIEN; THE FACT THAT THE HVAC INSTALLATION WAS DONE BY A LICENSED SUBCONTRACTOR MADE NO DIFFERENCE (SECOND DEPT).

The Second Department, reversing Supreme Court and dismissing the complaint, determined that plaintiff, a heating, ventilation and air-conditioning (HVAC) contractor, could not recover on his breach of contract claim and could not enforce a mechanic’s lien because the company was not licensed to do home improvement in Nassau County. The fact that the installation was actually done by a licensed subcontractor made no difference:

Pursuant to Nassau County Administrative Code § 21-11.2, anyone operating a home improvement business must be licensed. “Licensing statutes are to be strictly construed and an unlicensed contractor forfeits the right to recover damages based either on breach of contract or quantum meruit” … . “Moreover, a home improvement contractor must plead possession of a valid license in order to commence an action to foreclose a mechanic’s lien” … .

Here, the complaint, even as supplemented by an affidavit from the plaintiff’s president, failed to allege that the plaintiff was licensed to perform home improvement work in the County. As the plaintiff was not licensed to perform home improvement work in the County, it may not recover damages for breach of contract against the defendant and has forfeited the right to foreclose the mechanic’s lien … . The plaintiff’s contention that recovery should not be denied because the installation of the HVAC system was performed by a duly licensed subcontractor is without merit, as such a relationship is insufficient to permit an unlicensed contractor to recover for work performed … . Nationwide HVAC Supply Corp. v Mosby, 2025 NY Slip Op 06712, Second Dept 12-3-25

Practice Point: Municipal home-improvement licensing requirements are strictly enforced. Here the HVAC contractor was not licensed in Nassau County but the subcontractor who did the work was licensed. The contractor could not sue for breach of contract and could not enforce the mechanic’s lien. The contractor’s complaint was dismissed.

 

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THE POLICE STARTED FOLLOWING DEFENDANT BECAUSE THEY THOUGHT HE CROSSED THE STREET TO AVOID THEM; THE POLICE DID NOT HAVE GROUNDS FOR A COMMON-LAW INQUIRY AND NOTHING DEFENDANT DID AFTER THE STREET STOP JUSTIFIED THE LEVEL THREE SEIZURE OF THE DEFENDANT; THE WEAPON FOUND IN DEFENDANT’S POCKET SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined what the police saw did not warrant a common-law inquiry on the street and the subsequent level three seizure of the defendant was not justified. Apparently the police felt defendant crossed the street to avoid them, the police followed him and saw him pass something to a woman, after defendant was stopped he was told to take his hand out of his jacket pocket and did so, the officer testified a heavy object was in the jacket pocket, the defendant was then handcuffed and a handgun was found in the pocket:

Defendant’s suppression motion should have been granted. Although we decline to disturb the court’s credibility determinations … , notwithstanding our concerns about discrepancies between the officers’ testimony and what is shown in the body-worn camera footage, the initial inquiry and subsequent seizure were still unjustified. Even crediting the officers’ testimony that their suspicion was aroused when defendant and the woman crossed the street to avoid their patrol car, and then they later observed him pass a small object to the woman, the totality of the circumstances did not give rise to the level of suspicion required for a common-law inquiry … . Neither officer could identify what object was passed from defendant to the woman — one testified that “it could have been anything” — nor otherwise articulate why, from this innocuous behavior, they had a “founded suspicion that criminality was afoot” to warrant a level two encounter … . The police were not responding to a call, there was ambiguous testimony as to whether the encounter took place in a high crime area, and the woman did not give defendant money in exchange or immediately leave “without any kind social interaction” … .

Similarly, this Court’s review of the record, including the body-worn camera video recording of the encounter, indicates that the police were not justified in their escalation to the level three seizure in restraining defendant’s wrists simply because, after he was detained, and defendant complied with the officers’ request that he show his hands, he turned his body away from one officer, who observed a “shift in weight” in defendant’s jacket pocket … . Even if there had been a bulge in defendant’s pocket, that observation alone does not imply a reasonable conclusion that defendant was armed … . Defendant’s hands were in clear view when the officers seized him, and nothing in the record indicates that defendant was armed or posed a threat to safety to justify him being frisked … . People v Small, 2025 NY Slip Op 06665, First Dept 12-2-25

Practice Point: This decision illustrates the level of suspicion required to justify a common-law inquiry on the street. Here the police thought the defendant crossed the street to avoid them and they saw defendant pass something to a woman, but could not say what it was. That was not enough.

Practice Point: This decision also illustrates the level of suspicion required to justify a level three seizure on the street. Here defendant was told to remove his hand from his pocket and did so. The police testified there was a bulge in the pocket, but defendant’s hands were visible. The police were not justified in handcuffing the defendant and searching his pocket.

 

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A CONFERENCE IN CHAMBERS ABOUT WHETHER DEFENDANT WAS FIRED BECAUSE OF THE SEX ABUSE ALLEGATIONS WHICH WERE THE SUBJECT OF THE TRIAL WAS DEEMED TO BE A MATERIAL STAGE OF THE TRIAL AT WHICH DEFENDANT SHOULD HAVE BEEN PRESENT BECAUSE DEFENDANT HAD FIRST-HAND KNOWLEDGE OF THE FACTS; THE COURT RULED EVIDENCE OF THE FIRING COULD BE PRESENTED; DEFENSE COUNSEL’S WAIVER OF DEFENDANT’S PRESENCE WAS DEEMED INSUFFICIENT; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s sex-offense convictions and ordering a new trial, determined it was error to fail to include the defendant in sidebar and chambers conferences and defense counsel’s waiver of defendant’s presence was insufficient:

… County Court did not at any point advise defendant of his right to be present during sidebar conferences. * * * … [A]fter jury selection concluded but before the trial began, a conference was held with the attorneys in chambers wherein defendant plainly was not present. During this conference, County Court heard arguments from both defense counsel and the prosecutor regarding the admissibility of certain evidence, including testimony that defendant was fired from his job at the YMCA following the [sexual abuse] incident in question. There was discussion by the attorneys and the court as to the reason for defendant’s termination and whether it was based upon the charged conduct in this case. The court ruled that evidence of defendant’s firing would be allowed. It was only after it had issued its ruling that the court acknowledged that defendant was not present, whereupon defense counsel stated, “I can waive his appearance.”

Noting that the conference was conducted for the purpose of determining the admissibility of proposed testimony, and further recognizing that defendant presumably had personal knowledge of the circumstances surrounding his firing such that he would have been able to meaningfully participate in the discussion … , we find that this conference constituted a material stage of the trial at which defendant had the right to be present. In that regard, the transcript of the conference makes apparent that County Court’s ultimate ruling on this issue turned on the precise reason for defendant’s termination, and defendant was deprived of the opportunity to assist his counsel in advocating against the admission of the subject testimony. Therefore, it cannot be said “that defendant’s presence would have been useless, or the benefit but a shadow” … . People v Benton, 2025 NY Slip Op 06559, Third Dept 11-26-25

Practice Point: Consult this decision for insight into when the failure to include defendant in a sidebar or chambers conference will be deemed reversible error.

 

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THE EVIDENCE DID NOT SUPPORT THE FINDINGS THAT MOTHER AND FATHER NEGLECTED THE NEWBORN WHO TESTED POSITIVE FOR AMPHETAMINES AND DOCTOR-PRESCRIBED SUBUTEX; THERE WAS NO EVIDENCE THE CHILD’S LOW BIRTH WEIGHT AND NEED FOR COMFORTING WAS RELATED TO AMPHETAMINES AS OPPOSED TO THE SUBUTEX; FATHER’S “HOSTILE” BEHAVIOR TOWARD PETITIONERS AND HIS REFUSAL TO SIGN A BIRTH CERTIFICATE WERE NOT VALID GROUNDS FOR A NEGLECT FINDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence did not support finding mother and father had neglected the newborn child based upon positive toxicology results for amphetamines and Subutex. Subutex had been prescribed by a doctor. Mother admitted using a methamphetamine once during the pregnancy. The evidence did not demonstrate a causal connection between the child’s low birth weight and need for extra comforting and the use of amphetamines as opposed to the doctor-prescribed Subutex:

In finding that the child had been neglected by the mother, Family Court referenced the positive toxicology results and the mother’s admission to having used “ICE.” The court also referenced that the child was born with a “low birth weight consistent with experiencing in utero drug exposure.” While the hospital records confirm the child was “small for gestational age,” there was no testimony linking this to the mother’s use of amphetamines/methamphetamines during pregnancy. The court also cited to the child exhibiting “telltale signs of drug exposure, exhibiting increased tremors when disturbed, high pitch crying and a need for extra comforting.” There was testimony from a registered nurse who cared for the child that the child had withdrawal symptoms, such as a “high-pitched, shrill cry” and “constantly need[ing] to be held and have human touch.” However, there was no testimony as to whether the child’s small birth weight and withdrawal symptoms were related to the mother’s methamphetamine use, rather than her use of Subutex, which her unrefuted testimony demonstrates was prescribed by a doctor.[FN2] In fact, the mother testified that, during her pregnancy, medical professionals informed her that using Subutex would be fine for the child, that there would not be any side effects, but there may be “some withdrawals.” * * *

We reach the same result regarding the father’s neglect finding, which was based upon the father’s behavior toward petitioner’s staff, as well as hospital staff, which was “hostile beyond what would be deemed acceptable by a reasonable and prudent standard.” The finding was also based upon the father’s refusal to sign a birth certificate or acknowledgement of paternity, “effectively abandoning the child when the mother was deemed to be an unsafe caregiver.” There is no support in the law that either of these behaviors constitute neglect, nor did petitioner “demonstrate that [the child’s] physical, mental or emotional condition was in imminent danger of being impaired” based upon these behaviors … . And finally, Family Court imputed the father with knowledge of the mother’s drug use and found that he neglected the child “by failing to exercise a minimum degree of care to prevent the mother from abusing drugs during her pregnancy.” This statement exaggerates what the testimony revealed was the extent of the mother’s drug use during pregnancy, and there simply was no evidence regarding the father’s knowledge of her use … . Matter of Raivyn BB. (Courtney BB.), 2025 NY Slip Op 06564, Third Dept 11-26-25

Practice Point: A newborn’s testing positive for amphetamines is not enough to support a neglect finding without proof the baby’s low birth weight and need for comforting was caused by amphetamines.

Practice Point: Father’s “hostile” attitude and refusal to sign the birth certificate were not valid grounds or a neglect finding.

 

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THE PERSONAL PROPERTY IN PLAINTIFF’S RENTED STORAGE FACILITY WAS SOLD AT AUCTION BASED ON PLAINTIFF’S PURPORTED FAILURE TO PAY RENT; WHEN THE DEFENDANT STORAGE FACILITY OWNER REALIZED THE RENT HAD BEEN PAID BY PLAINTIFF’S PARTNER, DEFENDANT RESCINDED THE SALE OF PLAINTIFF’S PROPERTY, WAIVED LATE FEES, RETURNED THE MONEY TO THE BUYER AND ADVISED THE BUYER TO RETURN THE PROPERTY TO PLAINITFF; ALLEGING PROPERTY WAS MISSING, PLAINTIFF SUED UNDER LIEN LAW 182 FOR “WRONGFUL SALE” OF THE PROPERTY; AFTER AN EXTENSIVE STATUTORY ANALYSIS, THE SECOND DEPARTMENT DETERMINED LIEN LAW 182 DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR “WRONGFUL SALE” (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, affirming Supreme Court, determined defendant could not maintain an action against defendant storage facility based on a violation of Lien Law section 182. Defendant storage facility had not noticed that payments made by plaintiff’s partner, who rented a separate storage facility, were supposed to be applied to plaintiff’s rent. At the time defendant learned of the payments made by plaintiff’s partner, defendant had sold the items in plaintiff’s storage facility at an auction. Defendant rescinded the sale, waived the assessed late fees, returned the money paid by the buyer of plaintiff’s personal property, and advised the buyer to return the property. Plaintiff then sued for “wrongful sale” pursuant to Lien Law 182, alleging that some of his property was missing. Lien Law 182(7)(a) provides that any person claiming an interest goods to be sold at auction can bring a special proceeding within 10 days of the service of notice of the auction. No such special proceeding was brought by plaintiff. Both Supreme Court and the Second Department held that Lien Law 182 does not create a cause of action for “wrongful sale:”

Here, Lien Law § 182 provides that the remedy where a person “disputes the validity of the lien, or the amount claimed,” is to “bring a proceeding hereunder within ten days of the service of the notice” (id. § 182[7][a]), for which the remedy, if the person who commences the proceeding prevails, is “the entry of judgment cancelling the lien or reducing the amount claimed thereunder,” and a directive that “the person shall be entitled to possession of the property” if the lien is canceled (id. § 182[9]). The statute also provides for a “[p]rivate right of action” “for recovery of damages and the return of [the] goods” for “[a]ny occupant damaged by an unlawful detention of his [or her] goods or any other violation of this section” (id. § 182[4][a]).

To the extent the plaintiff attempts to equate his allegation of a wrongful sale with an “unlawful detention,” for which the statute recognizes a “[p]rivate right of action” (id. § 182[4][a]), the plaintiff’s contention is without merit. An “unlawful detention of goods” is unambiguously defined under the statute as an owner’s “refus[al] to surrender goods stored by him [or her] for an occupant upon payment by the occupant of the occupancy fees permitted by this section” (id. § 182[3]). That definition does not mention or reference the sale of goods stored by an owner, and thus, the phrase “unlawful detention” cannot be read as encompassing the plaintiff’s allegation of a wrongful sale. Heins v Public Stor., 2025 NY Slip Op 06605, Second De[t 11-26-25

Practice Point: Lien Law 182 provides that a person with an interest in property to be sold at auction pursuant to the Lien Law may bring a special proceeding to dispute the validity of the lien or the amount claimed within ten days of service of notice of the auction (which was not done here). Lien Law 182 does not create a private right of action for “wrongful sale” of the property at the action. Therefore plaintiff’s “wrongful sale” cause of action was properly dismissed after trial pursuant to CPLR 4401.​

 

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GENERALLY THE DEATH OF A PARTY TO AN ACTION DIVESTS THE COURT OF JURISDICTION AND REQUIRES A STAY OF THE PROCEEDINGS; HERE IN THIS FORECLOSURE ACTION HUSBAND AND WIFE OWNED THE PROPERTY AS TENANTS BY THE ENTIRETY; THE PROPERTY THEREFORE REMAINED WHOLLY OWNED BY WIFE UPON HUSBAND’S DEATH; BECAUSE PLAINTIFF WAS NOT SEEKING A DEFICIENCY JUDGMENT AGAINST HUSBAND’S ESTATE, A STAY OF THE PROCEEDINGS WAS NOT REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the death of one of the parties in this foreclosure action did not require a stay of the proceedings. The defendant wife held the property with her husband as tenants by the entirety. When the husband died, the wife remained as the owner of the entire property. The plaintiff mortgage company, by moving to delete the husband’s name for the caption, elected not to seek a deficiency judgment against the decedent’s estate. Therefore the action should not have been stayed:

“‘Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent'” … . However, “where a party’s demise does not affect the merits of the case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution” … . “[A] mortgagor who has made an absolute conveyance of all his [or her] interest in the mortgaged premises . . . is not a necessary party to foreclosure, unless a deficiency judgment is sought” … .

… [T]he plaintiff established that, upon the decedent’s death, Janice, “as a tenant by the entirety with her husband, remained seized of the entire ownership interest in the subject property” … . Moreover, by moving to amend the caption to delete the name of the decedent and, in effect, to discontinue the action insofar as asserted against him, the plaintiff, in effect, elected not to seek a deficiency judgment against the decedent’s estate … .

By virtue of the absolute conveyance of the property from the decedent to Janice, and the plaintiff’s waiver of its right to seek a deficiency judgment against the decedent or his estate, “strict adherence to the requirement that the proceedings be stayed pending substitution was not necessary” … . Citimortgage, Inc. v Fimbel, 2025 NY Slip Op 06600, Second Dept 11-26-25

Practice Point: Here in this foreclosure action against husband and wife as tenants by the entirety, the husband’s death did not require a stay of the proceedings because the wife continued to hold the entire ownership interest in the property and plaintiff was not seeking a deficiency judgment against the estate of the husband.

 

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