You are here: / THE PEOPLE’S FAILURE TO TURN OVER TO THE DEFENSE A VIDEO CONTAINING...

Search Results

/ , ,

THE PEOPLE’S FAILURE TO TURN OVER TO THE DEFENSE A VIDEO CONTAINING IMPEACHMENT MATERIAL PRIOR TO FILING A CERTIFICATE OF COMPLIANCE RENDERED THE CERTIFICATE OF COMPLIANCE AND THE STATEMENT OF READINESS ILLUSORY; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment on speedy trial grounds, in a full-fledged opinion by Justice Pritzker, determined the People were required to turn over a child advocacy center (CAC) video before filing a certificate of compliance (COC) and statement of readiness (SOR). The CAC video was not turned over until 20 days before trial:

… [T]he People conceded that the CAC video contained impeachment evidence based upon certain statements made by the victim … , and also that the CAC video had been turned over by the CAC to law enforcement and, as such, was in the People’s possession as of January 22, 2020 … . Despite this, the CAC video was not turned over to defendant until September 1, 2021, 20 days before trial, even though the People filed an earlier COC and SOR in October 2020. Specifically, the COC dated October 16, 2020 referenced an index detailing the materials that had been disclosed to defendant as of that date. This index reveals two compliance reports, one dated February 28, 2020 and the other dated October 1, 2020. As relevant here, the February 28, 2020 compliance report lists a document titled “CAC Chain of Custody – 01.22.2020.pdf” as having been turned over to defendant. There is no dispute that, while this chain of custody form for the CAC video was included in discovery, the video itself was not. * * *

… [H]ere, we are faced with a situation where the People certified, allegedly in good faith, that “the prosecutor has disclosed and made available all known material and information subject to discovery” … , despite knowing full well that they were intentionally withholding the CAC video. As such, we find that the People did not file the October 2020 COC in good faith as they did not make “all known material and information subject to discovery” available to defendant … . Further compounding their error, the People did not give defendant any notice of this withholding, either by withholding the CAC video and requesting a protective order … in the first instance, or, later, giving defendant notice that the CAC video was purportedly being withheld so as not to disclose any identifying information of the victim … . … [B]ecause we find that the October 2020 COC and SOR were illusory, the People did not validly announce readiness for trial until September 2021, which the People concede would be outside of the applicable six-month CPL 30.30 time frame. Thus, this Court must dismiss the indictment … . People v Mazelie, 2025 NY Slip Op 05849, Third Dept 10-23-25

Practice Point: Here the People’s failure to turn over impeachment evidence before filing the certificate of compliance rendered the certificate illusory and required dismissal of the indictment.

 

/ , ,

DEFENDANT RAISED QUESTIONS ABOUT THE VOLUNTARINESS OF HIS PLEA TO FIRST DEGREE MURDER SUFFICIENT TO WARRANT A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant had raised questions about the voluntariness of his plea to first degree murder (for killing his parents) which required a hearing on his motion to vacate his plea. Defendant was sentenced to life imprisonment without parole. In his motion to vacate his plea, defendant alleged his attorneys told him that the death penalty for first degree murder was going to be overturned and thereafter his sentence could be reduced. Defendant also alleged his guilty plea was induced in part by his cousin’s offer to pay him $10,000 if he pled guilty and renounced any claim to his parents’ estate:

According to defendant, after he had received the offer of payment, he remained reticent to accept the plea offer; however, by his telling, consideration of that payment together with his averment as to trial counsel’s misadvice of a potential reduced sentence ultimately persuaded him to accept the offer to plead guilty and be sentenced to life without parole. In support of that account, motion counsel and defendant’s investigator recounted trial counsel’s representation that defendant’s initial objection to accepting the plea offer diminished once the $10,000 payment had been offered. In support of defendant’s motion, he presented further evidence that $10,000 was paid to him after he entered his plea by way of two separate $5,000 checks, one of which was provided by his cousin. The evidence of that payment and the corresponding account that it influenced defendant’s deliberations as to whether to accept the plea, considered alongside the misadvice that he was purportedly provided, create an issue of fact as to whether he was subjected to something more “than the type of situational coercion faced by many defendants who are offered a plea deal” … .

All told, we find that defendant’s submissions in support of his motion are sufficient to raise an issue of fact warranting a hearing with respect to deficiencies in his representation … and the effect on the voluntariness of his plea … . …  With respect to both his claims, defendant bears the burden of establishing his entitlement to relief by a preponderance of the evidence (see CPL 440.30 [6]). As to his contention of deficient representation, defendant will bear the burden of proving that he was misadvised about the potential to have his sentence reduced in the future if he took the People’s plea offer and, but for that misadvice, there is a reasonable probability that he would have chosen to proceed to trial … . … [A]t this juncture the question “is whether defendant has made sufficient allegations to warrant an evidentiary hearing, not whether defendant has satisfied his burden of proof” … . People v Mower, 2025 NY Slip Op 05851, Third Dept 10-23-25

Practice Point: Consult this decision for insight into the allegations and proof which will be sufficient to require a hearing on whether defendant’s guilty plea was voluntarily entered in the context of a post-appeal motion to vacate the judgment of conviction.

 

/ , ,

IT WAS AN ABUSE OF DISCRETION TO RETURN THE CHILD TO MOTHER DURING THE PENDENCY OF NEGLECT PROCEEDINGS; MOTHER HAD INJURED THE CHILD AND THERE WAS INSUFFICIENT EVIDENCE THE IMPOSITION OF CONDITIONS FOR THE CHILD’S RETURN WILL ENSURE THE CHILD’S SAFETY (FIRST DEPT).

The First Department, reversing Family Court, determined mother’s application during the neglect proceedings for the return of her child should have been denied:

Family Court’s finding that the child should be returned to the mother lacked a sound and substantial basis in the record … .  Although the court properly determined, based on the evidence of the child’s physical injuries and her statements, that the mother was the person who inflicted the injuries, it was an improvident exercise of discretion to determine that the risk of harm could be mitigated by the conditions it imposed on the mother in the order under review … .

The court improvidently minimized both the nature and extent of the risk to the child and overstated the potential impact of its order on the child’s safety. Nothing in the mother’s testimony indicated that she understood the emotional harm she caused the child or expressed any genuine remorse over her actions. Initially, she tried to attribute the child’s injuries to an unrelated incident that took place several months earlier. She then claimed to be unaware of how the injuries occurred and ultimately opted to “plead the fifth.” Taken as a whole, the mother’s testimony reflects a lack of insight into how her conduct led to the child’s removal from her care. This lack of understanding further undercuts Family Court’s conclusion that services would be sufficient to mitigate the risk of harm posed to the child while in the mother’s care, and its belief that the mother would comply with the service plan. Although the mother took steps to enroll in services, the mere enrollment is insufficient to overcome the substantial evidence indicating that returning the child to her care would pose a risk to the child’s health and safety. Matter of M.M. (Chelsea B.), 2025 NY Slip Op 05887, First Dept 10-23-25

Practice Point: Here Family Court’s determination that imposing conditions for the child’s return to mother, who had injured the child, would ensure the child’s safety was not supported by the evidence. Therefore it was an abuse of discretion to order the child’s return to mother during the pendency of the neglect proceedings.​

 

/ , ,

DEFENDANT WAS NOT NOTIFIED THAT IF HE FAILED TO PAY RESTITUTION HIS SENTENCE WOULD BE ENHANCED; ENHANCED SENTENCE VACATED AND AGREED-UPON SENTENCE IMPOSED (THIRD DEPT).

The Third Department, vacating defendant’s enhanced sentence and imposing the agreed-upon sentence, determined defendant was not given notice that his failure to pay restitution would result in an enhanced sentence. The agreed sentence was 2 to 6 years and the enhanced sentence was 4 to 12 years:

Defendant argues that County Court erred in imposing a prison sentence in excess of that promised in the plea agreement and requests that this Court resentence him to the agreed-upon term of 2 to 6 years in prison, without remanding the matter to County Court. Defendant contends that while payment of restitution was contemplated prior to sentencing, County Court never advised him that if he failed to pay restitution by the sentencing date it could impose an enhanced prison sentence. We agree. Defendant’s argument survives his unchallenged appeal waiver … . However, given that the court’s enhanced sentence was pronounced at the very end of the sentencing proceeding, without advance warning that it was considering an enhanced sentence or even a clear finding that defendant had violated an express condition of the plea agreement, we find that he had no practical ability to raise an objection and, thus, preservation was not required … . Under settled law, “the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence, and, conversely, a sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed” … . People v Nestler, 2025 NY Slip Op 05852, Third Dept 10-23-25

Practice Point: Consult this decision for an explanation of the criteria which allow a judge to ignore an agreed-upon sentence and impose an enhanced sentence.​

 

/ ,

THE RECORD DID NOT DEMONSTRATE COMPLIANCE WITH THE WAIVER-OF-INDICTMENT PROCEDURE, A JURISDICTIONAL DEFECT; PLEA VACATED; PLEA TO A SUBSEQUENT INDICTMENT INDUCED BY A CONCURRENT SENTENCE PROMISE VACATED AS WELL (FIRST DEPT).

The First Department, reversing defendant’s convictions by guilty pleas, determined the failure to comply with the waiver-of-indictment procedure required vacation of the plea, as well as the vacation of a plea induced by a concurrent sentence promise:

The record fails to demonstrate compliance with CPL 195.20. There is no evidence that defendant signed the indictment waiver in open court when the plea was entered because it is not dated as the same day as the plea. The court’s order affirming compliance with CPL 195.10 and 195.20 is also not dated and the court did not confirm on the record that defendant signed the waiver or make any reference whatsoever to it at the time of the plea. …

The failure to comply with CPL 195.20 is a jurisdictional defect that requires reversal of the judgment of conviction and dismissal of the superior court information … .

… [D]ismissal of the information necessitates dismissal of defendant’s subsequent plea … . Defendant pleaded guilty to first-degree robbery in exchange for a sentence of five years’ incarceration and five years’ postrelease supervision, to run concurrently … . Where, as here, a defendant’s guilty plea is “induced by the understanding that the sentence would be concurrent with the sentence imposed for [the prior] conviction, since set aside, the plea must be vacated” … . People v Smith, 2025 NY Slip Op 05902, First Dept 10-23-25

Practice Point: Failure to comply with the waiver-of-indictment procedure is a jurisdictional defect requiring vacation of the plea. A plea to a subsequent indictment induced by a concurrent sentence promise must also be vacated.

 

/ , ,

PLAINTIFF WAS SEVERELY INJURED IN A FORKLIFT ACCIDENT AND BROUGHT THIS ACTION ALLEGING DEFECTIVE DESIGN; THERE WAS A DEFENSE VERDICT WHICH WAS REVERSED BECAUSE SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN ADMITTED AND SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN STRUCK (THIRD DEPT).

The Third Department, reversing the judgment finding the defendant’s forklift was not defectively designed, determined the admission and exclusion of expert evidence required a new trial. Plaintiff’s leg was crushed when the forklift he was operating struck a support beam in a warehouse. A portion of his leg was amputated. Defendant’s expert’s analysis was based in part on statistics that did not involve forklift-accidents and therefore was inadmissible. Plaintiff’s expert’s testimony about the need for future medical treatment was competent and should not have been struck:

Because the underlying data was specific to accidents involving defendant’s forklifts and plaintiff’s expert also relied upon and testified to that database, we find that Supreme Court properly allowed Marais [the defense expert]  to testify as to the rate of injuries sustained in the operation of defendant’s forklifts as computed from defendant’s database. However, the court abused its discretion in permitting testimony related to the utilization of the wider category of accidents involving “industrial truck and tractor operators,” as defendant failed to establish that the underlying conditions of those accidents were substantially similar to the facts presented here … . The core of Marais’ testimony was that the rate of injuries involving defendant’s forklifts was significantly lower than other industrial-related injuries. Even crediting that the federal database Marais utilized to make this comparison included forklift injuries, it also included a variety of other dissimilar industrial vehicles. In addition, there was no way to determine how many of the reported injuries therein were the result of forklift operations or, equally as important, the underlying conditions precipitating those accidents. * * *

… Supreme Court abused its discretion by striking Root’s (plaintiff’ medical expert’s] testimony and then limiting certain aspects of Thomas’ [plaintiff’s economist’s] testimony regarding plaintiff’s future medical expenses because the testimony was supported by “competent proof of necessary, anticipated medical costs through [a qualified physician] and [an] expert economist” … . Johns v Crown Equip. Corp., 2025 NY Slip Op 05856, Third Dept 10-23-25

Practice Point: Here plaintiff was injured in a forklift accident. Statistical evidence offered by defendant’s expert which included data that did not relate to forklifts should not have been admitted. To be admissible, statistical evidence must relate to substantially similar accidents.

Practice Point: Here the evidence of future medical procedures and costs offered by plaintiff’s medical expert and economist was competent and should not have been struck.

 

​

/ , ,

THE SURETY BOND, A CONTRACT, WAS UNAMBIGUOUS AND MADE NO MENTION OF PREJUDGMENT INTEREST; THE SURETY THEREFORE WAS NOT OBLIGATED TO PAY PREJUDGMENT INTEREST; THE ARGUMENT THAT CPLR 5001 MAKES PAYMENT OF PREJUDGMENT INTEREST MANDATORY WAS REJECTED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined that the terms of the surety bond governed whether the surety was obligated to pay prejudgment interest. Because the bond, a contract, did not mention prejudgment interest, the surety was not obligated to pay it. The argument that CPLR 5001 makes an award of prejudgment interest mandatory, regardless of the language of the surety bond, was rejected:

Here, the contract states that the surety will “pay for labor, materials, and equipment furnished for use in the performance of the [c]onstruction [c]ontract”; importantly to this case, there is no commitment to remit — or even mention of — prejudgment interest. “Surety bonds — like all contracts — are to be construed in accordance with their terms under established rules of contract construction. . . . [A] surety’s obligation upon its undertaking is defined solely by the language of the bond and cannot be extended by the court” … . In the matter before us, the damage claimed by plaintiff is the amount of prejudgment interest it did not receive in the judgment against the surety. However, under the clear and unambiguous terms of the payment bond, the surety had no obligation to remit same. Stone Cast, Inc. v Couch, Dale Marshall P.C., 2025 NY Slip Op 05860, Third Dept 10-23-25

Practice Point: CPLR 5001 does not make payment of prejudgment interest mandatory in breach of contract cases. The language of the surety bond, a contract, controls.​

 

/ , ,

THERE WAS NO PROOF THE OFFICER WHO FRISKED THE DEFENDANT AND REMOVED A WALLET FROM DEFENDANT’S POCKET SUSPECTED THE WALLET WAS A WEAPON; THE WALLET, WHICH HAD BEEN STOLEN FROM THE VICTIM, SHOULD HAVE BEEN SUPPRESSED; BECAUSE THE WALLET TENDED TO IDENTIFY DEFENDANT AS THE ROBBER, THE ERROR WAS NOT HARMLESS; NEW TRIAL ORDERED ON THE ROBBERY-RELATED OFFENSES (SECOND DEPT).

The Second Department, reversing the robbery-related convictions and ordering a new trial, determined the police did not have a lawful basis for removing a wallet from defendant’s pocket and examining its contents. There was no evidence that the lawful frisk of the defendant indicated the presence of a weapon. The wallet, which had been stolen from the victim, should have been suppressed. Because the robber was wearing a mask, finding the wallet on defendant’s person tended to identify defendant as the robber. The error in failing to suppress the wallet, therefore, was not harmless:

… [E]ven assuming that the officers were justified in performing a protective frisk … , there was no justification for searching the defendant’s pants pocket, reaching into it, and removing the wallet. In the course of conducting a protective pat-down based upon reasonable suspicion, “[o]nce an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion” … . There was no evidence presented at the suppression hearing that, during his frisk of the defendant, Nelson [the police officer] felt anything in the defendant’s pocket that seemed to be a weapon or that could have posed a danger to the officers at the scene. Indeed, Nelson did not testify at the hearing. Accordingly, there was no lawful basis for removing the wallet from the defendant’s pocket … , and that act violated the defendant’s Fourth Amendment right to be free from unreasonable searches and seizures … . The officers committed an additional constitutional violation when, after retrieving the wallet from the defendant’s pocket, they opened it and conducted a warrantless search of its contents … . Since the officers lacked the factual predicate necessary to search the defendant’s pocket and the wallet’s contents, the People failed to satisfy their burden of going forward to establish the legality of the police conduct in the first instance, and thus the wallet and its contents, seized as a result of that search, should have been suppressed … . People v Lewis, 2025 NY Slip Op 05823, Second Dept 10-22-25

Practice Point: If a street frisk does not indicate the presence of a weapon, the seizure and examination of a wallet found in defendant’s pocket has no lawful basis.

 

/ , , , ,

THE CLASS HAD STANDING TO SEEK DECLARATORY, INJUNCTIVE AND MONETARY RELIEF BASED UPON ALLEGATIONS THE COUNTY REAL PROPERTY TAX SYSTEM WAS IRRATIONAL, DISCRIMINATORY AND UNCONSTITUTIONAL RESULTING IN A SHIFT OF THE TAX BURDEN FROM THE WEALTHIER PREDOMINANTLY WHITE COMMUNITIES TO THE LOWER INCOME PREDOMINANTLY NONWHITE COMMUNITIES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Barros, determined the class of property owners in Nassau County had standing to  seek declaratory, injunctive and monetary relief stemming from the “irrational, discriminatory and unconstitutional” real property tax system:

… [T]he plaintiffs allege that the County’s tax assessment policies and procedures, i.e., its freeze on reassessments from January 2010 until January 2018 and its use of a grievance procedure which was voluntary and yielded unscientific results unrelated to property values, shifted the property tax burden from wealthier, predominantly white communities in the County to lower income, predominantly nonwhite communities. The plaintiffs allege that from 2010 through 2016, property taxes on 61% of the County’s residential and commercial properties increased by only $466, or 5%, on average, whereas the average increase for the other 39% of County properties was six times that amount: $2,748, or 35.7%. They allege that most properties in predominantly nonwhite communities comprised that 39%, which amounted to an aggregate shift in the property tax burden onto the plaintiffs and those similarly situated in a sum in excess of $1.7 billion. * * *

… [T]he allegations in the complaint, if true, … establish standing, including that the plaintiffs suffered an injury-in-fact … . The plaintiffs “allege[d] that publicly-criticized systemic inequities have resulted in [more expensive] properties increasingly shouldering less of a tax burden than properties worth far less” … and alleged that they were “being treated differently from other, similarly-situated property owners, and that no rational basis exists for this allegedly disparate treatment” … . Hall v Nassau County, 2025 NY Slip Op 05796, Second Dept 10-22-25

Practice Point: Here the allegations made by the plaintiff class demonstrated an injury-in-fact stemming from the county’s property tax system, i.e., a shift in the tax burden from the wealthier predominantly white communities to the lower income predominantly nonwhite communities. Therefore the class demonstrated standing to bring the lawsuit.

 

/

A DEFAULT JUDGMENT CANNOT EXCEED IN AMOUNT OR DIFFER IN THE KIND OF RELIEF DEMANDED IN THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the default judgment must be vacated because the judgment awarded relief which was not requested in the complaint:

“A default judgment cannot exceed in amount or differ in the kind of relief from that demanded in the complaint” … . Moreover, “‘at an inquest, the court may not permit amendments of the pleadings which would broaden the scope of the inquest and increase the amount of damages provable by the plaintiff'” … . Here, the complaint only sought damages … in the principal sum of $20,357. Accordingly, the judgment must be vacated and the matter remitted … for entry of an amended judgment limiting the award … to the amount originally demanded in the complaint. Deutsch v Levy, 2025 NY Slip Op 05790, Second Dept 10-22-25

Practice Point: A default judgment cannot exceed in amount or differ in the kind of relief requested in the complaint.​

 

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