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THE NEW YORK CITY LOCAL LAWS REFORMING THE NYC FIGHTING HOMELESSNES AND EVICTION PREVENTION SUPPLEMENT ARE NOT PREEMPTED BY THE NEW YORK STATE SOCIAL SERVICES LAW (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined that the local laws passed by the City Council modifying the New York City Fighting Homelessness and Eviction Prevention Supplement (FHEPS) were not preempted by the New York State Social Services Law. The opinion is comprehensive and too detailed to fairly summarize here:

[The] FHEPS reform laws were prompted by three conditions faced by the City: the rising number of evictions of residential tenants, a dramatic increase in the rate of homelessness, and an overburdened shelter system.  These laws were designed to broaden eligibility for City-funded rental assistance, and promote quantitatively and qualitatively greater assistance. Thus, the FHEPS reform laws increased the income eligibility threshold, eliminated a 90-day shelter residency requirement, eliminated recipient work requirements, prohibited the New York City Department of Social Services (City DSS) from deducting a utility allowance from the maximum rental allowance for a FHEPS voucher, and expanded the list of individuals eligible for rental assistance (see Local Law Nos. 99-102). * * *

Several individuals who hoped to avail themselves of the benefits of the FHEPS reform laws commenced this CPLR article 78 proceeding, challenging the Mayor’s refusal to implement those laws. The individuals initiated the proceeding as a putative class action, and bring the case on behalf of themselves and others similarly situated. The City Council was granted leave to intervene in the proceeding, and sought an order directing the Mayor to implement the FHEPS reform laws or, alternatively, a declaration that those laws are valid. With respect to the principal relief sought, the City Council makes plain that it “seeks only that the Mayor be directed to take action to implement [the new local laws]. How the administration implements the [FHEPS] Reform Laws is within the administration’s discretion.”

The Mayor opposed the article 78 petition on the ground that the FHEPS reform laws are preempted by the State’s Social Services Law. Matter of Vincent v Adams, 2025 NY Slip Op 04146, First Dept 5-27-25

Practice Point: Consult this opinion for an analysis of the preemption doctrine in the context of NYC Local Laws and the NYS Social Services Law.

 

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THE DETECTIVE DID NOT READ THE MIRANDA RIGHTS TO DEFENDANT AND IT IS CLEAR FROM THE VIDEOTAPE THAT DEFENDANT COULD NOT HAVE READ THE WRITTEN EXPLANATION OF THOSE RIGHTS BEFORE HE WAIVED THEM; THE PEOPLE, THEREFORE, DID NOT PROVE DEFENDANT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVED THE MIRANDA RIGHTS; THE MOTION TO SUPPRESS DEFENDANT’S STATEMENTS SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing the conviction, suppressing defendant’s statements and ordering a new trial, over a dissent, determined the People did not demonstrate defendant knowingly, intelligently and voluntarily waived his right to remain silent and his right to counsel before speaking with the detective. The detective never explained the Miranda rights verbally. Defendant was given a paper which explained the rights. The videotape of defendant’s interview showed that defendant looked at the paper for no more than five seconds before signing it:

As can be seen from the videotape, neither the detective nor defendant read all of the Miranda rights out loud and, while they did discuss Miranda in general, the focus of the oral interaction was about the waiver of the right to counsel and not the other rights described on the Miranda form. There is no indication that defendant actually read all of the warnings or comprehended them. Indeed, the videotape establishes that defendant looked at the form for less than five seconds before he reached for the pen to sign it. Based on our review of the video, we conclude that it is highly improbable, if not impossible, for defendant to have read to himself all of the Miranda warnings during the five seconds the piece of paper was in front of him before he signed. More to the point, the People failed to meet their burden of proving beyond a reasonable doubt that defendant was adequately apprised of his relevant constitutional rights before waiving them.

Although “[t]here is no rule, statutory or otherwise, requiring that Miranda warnings be read to a suspect” … , there is no evidence in this case that defendant was actually “administered” such rights … or that such rights were “verbally outline[d]” to him … . People v Marsh, 2025 NY Slip Op 03874, Fourth Dept 6-27-25

Practice Point: There is no requirement that the police read the Miranda rights to a suspect out loud. But the People have the burden of proving the defendant knowingly, intelligently and voluntarily waived those rights before defendant was interviewed. Here the videotape of the interview demonstrated the detective did not explain the rights verbally. Rather, the detective provided defendant with a paper explaining the rights. The videotape demonstrated defendant looked at the paper for no more than five seconds before signing it. The People therefore failed to prove a knowing, intelligent and voluntary waiver of the Miranda rights and suppression was warranted.

 

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IN THIS CHILD PORNOGRAPHY CASE, COMPELLING DEFENDANT TO UNLOCK THE CELL PHONE WITH HIS FINGERPRINT AMOUNTED TO TESTIMONIAL EVIDENCE THAT HE OWNED, CONTROLLED AND HAD ACCESS TO THE CONTENTS OF THE PHONE, A VIOLATION OF HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION; THE MOTION TO SUPPRESS THE TESTIMONIAL EVIDENCE AND THE CONTENTS OF THE PHONE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Ogden, determined compelling defendant to unlock his cell phone with his finger (the cell phone was programmed to recognize defendant’s fingerprint) violated defendant’s Fifth Amendment right against self-incrimination. The police were acting pursuant to a child-pornography search warrant when defendant was compelled to unlock the phone. The cell phone contained child pornography. Defendant pled guilty. The issue on appeal was whether defendant’s motion to suppress the images on the phone should have been granted:

… [T]he People do not dispute that the opening of the cell phone was compelled and incriminating. We are thus tasked with determining whether defendant’s compelled opening of his cell phone, upon the warrant’s execution, had a testimonial aspect sufficient to trigger Fifth Amendment protection.

… [W]e conclude that defendant’s “act of unlocking the phone represented the thoughts ‘I know how to open the phone,’ ‘I have control over and access to this phone,’ and ‘the print of this specific finger is the password to this phone’ ” … . The biometric data defendant provided “directly announce[d] [defendant’s] access to and control over the phone, as well as his mental knowledge of how to unlock the device” … . The act of production cases also support the conclusion that, upon execution of the warrant, defendant’s compelled unlocking of his phone through biometric data was testimonial. We conclude that “in response to the command to unlock the phone, [defendant] opened it, [and] that act disclosed his control over the phone [and] his knowledge of how to access it” … . At a minimum, the authentication through biometric data implicitly communicated that the contents contained therein were in defendant’s possession or control … .

… [T]he way in which the warrant was executed effectively required defendant to answer “a series of questions about ownership or control over the phone, including how it could be opened and by whom” … .

… “Because the compelled opening of the cellphone [during the execution of the search warrant] was testimonial, both the message and any evidence obtained from that communication must be suppressed” … . People v Manganiello, 2025 NY Slip Op 03873, Fourth Dept 6-27-25

Practice Point: At least where there is a question whether defendant owns and controls a cell phone which contains child pornography, compelling defendant to unlock the phone with his fingerprint is tantamount to defendant’s testimony that defendant owns, controls and has access to the contents of the phone—constituting a violation of a defendant’s Fifth Amendment right against self-incrimination.

 

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WHEN A WITNESS’S IDENTIFICATION OF THE DEFENDANT FROM A PHOTOGRAPH SHOWN TO HIM BY THE POLICE IS DEEMED “CONFIRMATORY,” THAT CONCLUSION IS TANTAMOUNT TO A DETERMINATION AS A MATTER OF LAW THAT THE POLICE IDENTIFICATION PROCEDURE WAS NOT SUGGESTIVE AND COULD NOT HAVE LED TO THE MISIDENTIFICATION OF THE DEFENDANT BECAUSE THE WITNESS KNEW THE DEFENDANT WELL; HERE THE PROOF THE IDENTIFICATION WAS CONFIRMATORY WAS INSUFFICIENT; THE IDENTIFICATION TESTIMONY SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, suppressing identification testimony and ordering a new trial, determined the evidence did not support the conclusion the witness’s identification of the defendant from a photograph shown to him by the police was “confirmatory.” Deeming an identification as confirmatory is tantamount to finding there is no chance the police identification procedure could lead to misidentification because the witness knows the defendant well:

“A court’s invocation of the ‘confirmatory identification’ exception is . . . tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is ‘little or no risk’ that police suggestion could lead to a misidentification” … . “In effect, it is a ruling that however suggestive or unfair the identification procedure might be, there is virtually no possibility that the witness could misidentify the defendant” … . “The People bear the burden in any instance they claim that a citizen identification procedure was ‘merely confirmatory’ ” … . “[T]he People must show that the protagonists are known to one another, or where . . . there is no mutual relationship, that the witness knows defendant so well as to be impervious to police suggestion” … . “[W]hether the exception applies depends on the extent of the prior relationship, which is necessarily a question of degree” … . In determining whether the witness is sufficiently familiar with the defendant, a court may consider factors such as “the number of times [the witness] viewed [the] defendant prior to the crime, the duration and nature of the encounters, the setting, the period of time over which the viewings occurred, the time elapsed between the crime and the previous viewings, and whether the two had any conversations” … .

Here … the evidence was insufficient to establish that the witness’s pretrial photo identification of defendant was confirmatory as a matter of law because, “[a]lthough the witness testified that he knew defendant because he had seen him ‘a couple of times’ at the barber shop, and that the two had each other’s phone numbers, [the witness] also testified that he did not know defendant well, that he knew him only by a common nickname, and that they never spoke again after the assault” … . … [T]he witness testified at trial that he had seen defendant a couple times at the barber shop … , and the evidence at the hearing similarly established that the witness had either interacted with defendant twice or approximately four or five times including a couple of times at the barber shop. … [T]he witness testified … that he knew defendant “not much but a little bit,” that he knew defendant only by his nickname and not his given name, and that he never heard from defendant again after the assault … . People v Alcaraz-Ubiles, 2025 NY Slip Op 03929, Fourth Dept 6-27-25

Practice Point: Consult this decision for insight into the quantum of evidence necessary to prove a witness’s identification of the defendant from a photograph shown to him by the police was “confirmatory” because the defendant was well known to the witness.

 

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A COURT’S POWER TO VACATE AN ARBITRATOR’S AWARD IS EXTREMELY LIMITED; AN ARBITRATOR’S INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT CANNOT BE REVIEWED UNLESS IT IS “COMPLETELY IRRATIONAL;” HERE THE ARBITRATOR’S AWARD UPHOLDING THE SUSPENSION OF PETITIONER-DENTAL-HYGIENIST FOR HER FAILURE TO OBTAIN A COVID-19 VACCINE WAS CONFIRMED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the arbitrator’s award in this COVID-19 vaccine-mandate case should not have been vacated. The arbitrator found that the petitioner-employee, a dental hygienist, was properly suspended without pay and issued a Notice of Discipline for failure to obtain a COVID-19 vaccine. A court’s power to vacate an arbitration award is extremely limited:

We agree with respondent that the court “erred in vacating the award on the ground that it was against public policy because petitioner[] failed to meet [her] heavy burden to establish that the award in this employer-employee dispute violated public policy” … . We further agree with respondent that the court “erred in vacating the award on the ground that it was irrational” … . ” ‘An award is irrational if there is no proof whatever to justify the award’ ” … . Where, however, “an arbitrator ‘offer[s] even a barely colorable justification for the outcome reached,’ the arbitration award must be upheld” … . Here, there is no dispute that respondent directed petitioner to fully receive the COVID-19 vaccine by a specific date, that it apprised her that her continued employment was contingent upon her compliance, and that petitioner refused to be vaccinated by the required date. It is also undisputed that petitioner was never granted a reasonable accommodation that excused her compliance with the vaccine mandate. Consequently, the court erred in concluding that the arbitrator’s award was irrational … . To the extent petitioner argues that the arbitrator erred in not considering the propriety of respondent’s denial of petitioner’s request for a reasonable accommodation based on a pre-existing health condition, we note that the arbitrator interpreted the CBA as precluding any review of that decision. Inasmuch as we conclude that “the arbitrator’s ‘interpretation of the [CBA] [is] not . . . completely irrational, [it] is beyond [our] review power’ ” … . Finally, we note that the court was not permitted to vacate the award merely because it believed vacatur would better serve the interest of justice … . Matter of Davis (State of New York Off. of Mental Health), 2025 NY Slip Op 03910, Fourth Dept 6-27-25

Practice Point: Consult thee decisions for an explanation of the limits on a court’s review of an arbitration award.

 

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EVEN WHERE THERE IS EVIDENCE DEFENDANT INTENTIONALLY AIDED IN THE COMMISSION OF THE UNDERLYING FELONY, THE TRIAL JUDGE MUST INSTRUCT THE JURY ON THE FELONY-MURDER AFFIRMATIVE DEFENSE WHERE THERE IS EVIDENCE THE DEFENDANT DID NOT PARTICIPATE IN THE ACTS CAUSING THE VICTIM’S DEATH AND THERE IS EVIDENCE TO SUPPORT ALL THE ELEMENTS OF THE DEFENSE (FOURTH DEPT).

The Fourth Department, reversing the murder second degree conviction and ordering a new trial, determined the judge should have given the jury instruction for the affirmative defense to felony murder. When defendant’s back was turned, a co-defendant shot and killed a man standing at the passenger door of a vehicle. Defendant then knocked to the ground a woman standing at the driver’s side of the vehicle and stole her purse. Defendant was not armed and stated to the police he did not know the co-defendant intended to commit a crime:

It is an affirmative defense to felony murder that the defendant “(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (b) Was not armed with a deadly weapon, or any instrument, article or substance [*2]readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and (c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and (d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury” (Penal Law § 125.25 [3]). * * *

Even where, as here, the evidence shows that a defendant “intentionally aided [the primary assailant] in the commission of” the underlying felony, a trial court errs in refusing to charge the affirmative defense to felony murder where there is evidence that the defendant “did not participate in the acts causing the victim’s death” … . Here, the trial evidence was “reasonably supportive of the view” that defendant satisfied the four elements of the affirmative defense and, “regardless of evidence to the contrary, the court [was] without discretion to deny the charge, and error in this regard requires reversal and a new trial” … . People v Rosa, 2025 NY Slip Op 03907, Fourth Dept 6-27-25

Practice Point: Where there is evidence to support the elements of the affirmative defense to felony murder, the judge has no discretion and must instruct the jury on the defense, even where there is evidence to the contrary.

 

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THE CONCLUSORY STATEMENTS BY THE OWNER OF THE STOLEN CAR AND AN INVESTIGATING OFFICER FAILED TO DEMONSTRATE THE VALUE OF THE CAR WAS GREATER THAN $3000; CRIMINAL POSSESSION OF STOLEN PROPERTY THIRD DEGREE CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing the possession-of-stolen-property-third-degree conviction, determined the value of the stolen property, a vehicle, was not proven:

Here, in addition to photographs of the vehicle admitted in evidence, the victim testified that he purchased the subject 2010 Toyota Prius as a new vehicle for approximately $20,000, that he drove it 240,000 miles over the course of the subsequent 12 years, and that it was in a “[h]eavily used,” albeit running, condition when it was stolen. Although the victim testified that he had previously consulted the “blue book” when considering whether to sell the vehicle, he ultimately provided, based on the condition of the vehicle and unspecified research, only vague testimony that his “guess” or “approximate estimation” was that the vehicle was valued at $4,000, which constituted a “[c]onclusory statement[ or] rough estimate[ ] of value [that is] not sufficient to establish the value of the property” at the time of its theft … . Moreover, although a police officer testified that he estimated that the vehicle was valued between $6,000 and $10,000 based on his observations of the vehicle and consultation with the “blue book,” that testimony was also conclusory. Indeed, there was no evidence that the officer had accurately ascertained the “blue book” value—which inexplicably varied significantly from the victim’s estimate—by appropriately accounting for the age, mileage, and condition of the vehicle … . Based on the evidence of value in the record, we cannot conclude ” ‘that the jury ha[d] a reasonable basis for inferring, rather than speculating, that the value of the property exceeded the statutory threshold’ of $3,000″ … . Consequently, we conclude on this record that the evidence is legally insufficient to establish that the value of the stolen vehicle was greater than $3,000 … . People v Szurgot, 2025 NY Slip Op 03906, Fourth Dept 6-27-25

Practice Point: Here the conclusory statements by the owner of the stolen car and the investigating officer estimating the value of the car constituted legally insufficient evidence that the value of the stolen property was greater than $3000.

 

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DEFENDANT’S VEHICLE WAS STRUCK BY A VEHICLE WHICH WAS BEING CHASED BY POLICE AND WHICH FAILED TO OBEY A STOP SIGN; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant was entitled to summary judgment in this intersection traffic accident case. Plaintiff was a passenger in a Honda which was being chased by police. Defendant, whose car was struck by the Honda when the driver of the Honda failed to obey a stop sign, could justifiably assume the driver of the Honda would obey the stop sign. The dissent argued there was a question of fact whether defendant breached the duty to see what should be seen:

We respectfully disagree with our dissenting colleagues that defendant failed to meet his initial burden of establishing that he was free of comparative fault. … [Defendant testified] the collision occurred “instantly” after he first saw the car. * * * … [P]laintiff testified that he “blacked out” in the accident and did not know how it was caused. He was not even sure that the accident occurred at an intersection. All he could remember was the Honda proceeding straight with the police behind them and that he was “a little shaken up because [he had] never been in a high speed [chase].” That was “all [he could] remember, and [then] it was just boom.” Another occupant of the Honda testified that, as the Honda approached the intersection, “[i]t tried to stop, but . . . [they] were going a little too fast” and slid into the intersection. Defendant therefore established that the Honda never stopped at the stop sign before proceeding into the intersection and colliding with defendant’s vehicle. Inasmuch as the evidence submitted by defendant established that he had, at most, “only seconds to react” to the Honda that failed to yield the right-of-way, he established as a matter of law that he was not comparatively negligent … . Brown v City of Buffalo, 2025 NY Slip Op 03902, Fourth Dept 6-27-25

Practice Point: Here defendant’s vehicle was struck by a vehicle which was being chased by police and which did not obey a stop sign. The complaint against defendant, brought by a passenger in the vehicle which ran the stop sign, should have been dismissed. A two-justice dissent argued there was a question of fact whether defendant breached the duty of a driver to see what could be seen.

 

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THE MARIJUANA REGULATION AND TAXATION ACT (MRTA) APPLIES TO THE EVIDENCE PRESENTED AT A SUPPRESSION HEARING AND PRECLUDES A FINDING OF PROBABLE CAUSE TO SEARCH A VEHICLE BASED SOLELY ON THE ODOR OF MARIJUANA; THEREFORE THE STATUTE APPLIES HERE WHERE, ALTHOUGH THE SEARCH WAS PRE-ENACTMENT, THE SUPPRESSION HEARING WAS POST-ENACTMENT (THIRD DEPT).

The Third Department, granting defendant’s suppression motion and vacating defendant’s guilty plea, in a full-fledged opinion by Justice Lynch, over a dissent, determined the Marijuana Regulation and Taxation Act (MRTA), which prohibits the search of a vehicle based solely on the odor of marijuana, applied to defendant’s case, even though the statute had not been enacted at the time of the search. The statute had been enacted at the time of the suppression hearing:

On this appeal, we are tasked with answering a question left open by the Court of Appeals in People v Pastrana (41 NY3d 23, 29 [2023] …) — namely, whether Penal Law § 222.05 (3) (a), enacted as part of the Marihuana Regulation and Taxation Act (hereinafter MRTA), applies to a post-enactment suppression hearing concerning a pre-enactment search. * * *

… Penal Law § 222.05 (3) (a) — enacted as part of the MRTA — provides that “in any criminal proceeding including proceedings pursuant to [CPL] 710.20 . . . , no finding or determination of reasonable cause to believe a crime has been committed shall be based solely on evidence of . . . the odor of cannabis” … . CPL 710.20 pertains to motions to suppress evidence. By this comprehensive and present tense language, Penal Law § 222.05 (3) (a) expressly limits a suppression court’s authority to base a probable cause finding solely upon evidence of the odor of marihuana without regard to when the vehicle search occurred. * * *

… [T]his provision is directed at the present evidentiary findings of a court, “and no real question of retroactive effect on past conduct or events is presented” … . Since Penal Law § 222.05 (3) (a) was in effect at the time of the suppression hearing and the suppression court’s probable cause finding was based solely upon the fact that the trooper smelled the odor of marihuana emanating from the vehicle, that determination was erroneous as a matter of law … . People v Martin, 2025 NY Slip Op 03842, Third Dept 6-26-25

Practice Point: Here the Marijuana Regulation and Taxation Act (MRTA) was deemed to apply to the evidence which can be considered at a probable-cause-to-search-a-vehicle hearing. Therefore there was no need to apply the statute retroactively where the search was pre-enactment but the suppression hearing was post-enactment.

 

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AN AMENDMENT TO THE PUBLIC SERVICE LAW REQUIRES UTILITY COMPANIES TO COMPENSATE CUSTOMERS FOR STORM-OUTAGE-RELATED LOSSES WHERE THE OUTAGE IS FOR 72 HOURS OR MORE AND PROHIBITS UTILITIES FROM RECOVERING THOSE COSTS FROM RATEPAYERS (THIRD DEPT).

The Third Department, affirming Supreme Court, in a full-fledged opinion by Justice Fisher, determined that an amendment to the Public Service Law requires utilities to compensate customers for storm-outage-related losses when the outage lasts for 72 hours or more, and prohibits utilities from recovering those costs from ratepayers. The Third Department disagreed with Supreme Court and found this declaratory judgment action was ripe for judicial review, but affirmed Supreme Court’s dismissal of the petition. The opinion has a comprehensive discussion of statutory interpretation which is too detailed to fairly summarize here. Matter of Central Hudson Gas & Elec. Corp. v State of N.Y. Pub. Serv. Commission, 2025 NY Slip Op 03849, Third Dept 6-25-25

 

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