You are here: / ALTHOUGH DEFENDANT PLED GUILTY TO MANSLAUGHTER AND ATTEMPTED ASSAULT PURSUANT...

Search Results

/ ,

ALTHOUGH DEFENDANT PLED GUILTY TO MANSLAUGHTER AND ATTEMPTED ASSAULT PURSUANT TO A PLEA AGREEMENT WITH A NEGOTIATED SENTENCE, THE CONSECUTIVE SENTENCES WERE ILLEGAL; THERE WAS NO PROOF IN THE PLEA ALLOCUTION THAT THE DEFENDANT FIRED MORE THAN ONE BULLET (THERE WAS A SECOND SHOOTER) (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the 25-year sentence for manslaughter and the 10-year sentence for attempted assault, which, pursuant to a plea agreement with a negotiated sentence, were imposed consecutively, must be served concurrently. Because the defendant pled guilty, the only relevant evidence is in the plea allocution. The majority concluded the record did not demonstrate that the defendant fired more than one bullet and therefore there was no proof the manslaughter and attempted assault charges stemmed from two separate acts (there was a second shooter):

“Consecutive sentences are appropriate only when either the elements of the crimes do not overlap or if the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct” … . The People bear the burden of establishing the legality of consecutive sentences and, when a defendant pleads guilty to a count in the indictment, may meet their burden by relying on the allegations in the accusatory instrument and any facts adduced at the plea allocution … . Where, as here, a defendant also pleads guilty to a lesser offense than that charged in the indictment, the People may only rely upon those facts and circumstances admitted during the plea allocution with respect to that count … . To this point, the facts necessary to support consecutive sentences may not be discerned from statements included in a presentence report … .

… [T]he People failed to meet their burden inasmuch as there are no facts alleged in the count of the indictment to which defendant pleaded guilty, or in the plea allocution relating to either count, that would establish that defendant’s “shooting a firearm,” which constituted manslaughter in the first degree by causing the death of the victim (count 1) and attempted assault in the first degree to a different victim (count 4), “arose from a separate and distinct pull of the trigger by defendant” … . People v Sabb, 2025 NY Slip Op 02624, Third Dept 5-1-25

Practice Point: To justify consecutive sentences the offenses must be the result of distinct acts. When conviction is by guilty plea, the plea allocution is the only admissible evidence of what happened (the pre-sentence report cannot be considered). Here, because the defendant did not admit to firing more than one bullet in the plea allocution, the sentences for manslaughter and attempted assault cannot be imposed consecutively. There was a cogent two-justice dissent.​

 

/ ,

THERE ARE TWO STATUTORY PROCEDURES FOR APPROVING AN EXTENSION OF A SEWER DISTRICT; HERE THE REQUEST FOR AN EXTENSION WAS INITIATED UNDER ONE STATUTORY PROCEDURE, WHICH DOES NOT REQUIRE A REFERENDUM, BUT THE TOWN APPLIED THE OTHER STATUTORY PROCEDURE, WHICH DOES REQUIRE A REFERENDUM; THAT WAS ERROR (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the town failed to follow the correct statutory procedure for approval of an extension of a sewer district to include petitioner’s commercial development  There are two statutory procedures. The Town Law Article 12 procedure applies when a petition is filed by an owner of taxable property (like the petitioner in this case). The Article 12 procedure has no “referendum” requirement. The Town Law Article 12-A procedure is initiated by the town and requires a referendum. Here the town required a referendum and thereby applied the wrong statutory procedure:

… [W]ithout formally ruling on the article 12 petition, the Town Board … essentially approved the extension project under the framework of article 12-A by providing for a permissive referendum. Recognizing that these articles do not contain any mechanism for such a conversion, we find that the Town Board erred and, as a result, its resolutions must be invalidated. Matter of Glen Wild Land Co., LLC v Town of Thompson, 2025 NY Slip Op 02628, Third Dept 5-1-25

Practice Point: Where the Town Law provides two distinct statutory procedures for approval of an extension of a sewer district, the town must follow the procedure in the applicable statute. Here the applicable statute did not require a referendum but the inapplicable statute did. The town erred when it required a referendum.

 

/ , ,

ALTHOUGH FATHER IS INCARCERATED FOR ASSAULTING MOTHER WHEN SHE WAS SEVEN MONTHS PREGNANT, FATHER IS ENTITLED TO A HEARING ON WHETHER VISITATION WITH THE CHILD, WHICH NEED NOT INCLUDE CONTACT VISITATION, IS IN THE BEST INTERESTS OF THE CHILD; IT IS THE MOTHER’S BURDEN TO DEMONSTRATE VISITATION WOULD BE HARMFUL (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the incarcerated father was entitled to a hearing on whether visitation would be in the best interests of the child. Father was convicted of assaulting mother when mother was seven months pregnant. Family Court had granted mother’s summary judgment motion precluding father’s contact until the child turns 18. The Third Department found that summary judgment in the absence of a hearing was inappropriate:

… [W]e agree with the father’s contention that a hearing was required regarding the issue of visitation. Plainly stated, we do not find that, given the specific circumstances of this case, denying the father any contact with the child until the child’s 18th birthday was appropriate on a summary judgment motion … . This is especially so given that “visitation . . . need not always include contact visitation at the prison” … . As such, the father is entitled to a hearing to determine what, if any, visitation is in the best interests of the child. By way of reminder, at this hearing, it is not the father’s burden to demonstrate that visitation is in the child’s best interests, but rather it is the mother, as the party opposing visitation, who has the burden of demonstrating, by a preponderance of the evidence, “that visitation with [the father] would, under all of the circumstances, be harmful to the child[‘s] welfare or contrary to [her] best interests” … . This includes a consideration of whether updates, photographs and/or letters may be appropriate and in the best interests of the child … . Matter of Jaime T. v Ryan U., 2025 NY Slip Op 02638, Third Dept 5-1-25

Practice Point: Once again it is Family Court’s failure to hold a hearing which results in reversal. Here the incarcerated father is entitled to a hearing on whether visitation, which need not include contact visitation, would be in the best interests of the child. At the hearing, it is mother’s burden to demonstration visitation would be harmful to the child.

 

/ ,

THE TRIAL PROOF COULD BE INTERPRETED TO SUPPORT AN INTENT TO CAUSE SERIOUS PHYSICAL INJURY (ASSAULT SECOND) OR AN INTENT TO CAUSE PHYSICAL INJURY (ASSAULT THIRD); DEFENDANT’S REQUEST THAT THE JURY BE INSTRUCTED ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THAT COUNT (THIRD DEPT).

The Third Department, ordering an new trial on the assault second count, determined defendant’s request that the jury be instructed on assault third as a lesser included offense should have been granted:

… County Court erred in refusing [defendant’s]  request to charge assault in the third degree as a lesser included offense of assault in the second degree. Assault in the second degree is committed when a person acts “[w]ith intent to cause serious physical injury to another person [and] causes such injury to such person or to a third person” … ; assault in the third degree, in contrast, is committed when a person acts “[w]ith intent to cause physical injury to another person [and] causes such injury to such person or to a third person” … . There is no dispute that assault in the third degree as defined in Penal Law § 120.00 (1) is a lesser included offense of assault in the second degree as defined in Penal Law § 120.05 (1), as a person could intend and cause physical injury to a victim while not intending or causing serious physical injury … . The trial proof here left little doubt that defendant began by attempting to discipline the victim but that things soon escalated to the point where he was trying to injure her, including by picking her up by her throat and holding her against a wall for a few minutes, allowing her to fall to the floor and then slapping her. This proof permitted the finding that defendant intended to cause a serious physical injury which “create[d] a substantial risk of death, or . . . serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ,” and such an injury resulted when the victim fell to the floor and broke her tooth … .

… [I]t was unclear whether defendant anticipated that the conscious victim would fall when he released her, and there was conflicting testimony as to whether he threw her to the floor with enough force to break her tooth or she simply took a bad fall after he let her drop. The victim’s treating dentist further conceded in his testimony that a tooth could accidentally break and that he had seen such injuries result from incidents as minor as “biting down on forks wrong.” When viewed in the light most favorable to defendant, this proof could allow “a jury [to] reasonably conclude that defendant intended and caused ‘physical injury’ to the victim” as opposed to serious physical injury … . People v Hooper, 2025 NY Slip Op 02623, Third Dept 5-1-25

Practice Point: There is no question that Assault third is a lesser included offense of Assault second. Here, the trial proof could be interpreted to support an intent to cause serious physical injury (Assault second) or an intent to cause physical injury (Assault third). Therefore defendant’s request for a jury instruction on Assault third should have been granted. A new trial was ordered on that count.

 

/ ,

DEFENDANT IN THIS SLIP AND FALL CASE OFFERED NO EVIDENCE THAT THE AREA OF THE FALL WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE FALL; THEREFORE THE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE SLIPPERY CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined defendant did not not demonstrate a lack of constructive notice of the slippery substance because no proof the area was inspected or cleaned close in time to the fall was presented:

The defendant … failed to establish … that it lacked actual or constructive notice of the alleged slippery substance on the floor. “To meet its burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’ … . Evidence of general cleaning practices are inadequate to show “lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question” … . Here, the managing member of the defendant testified only that all staff had a general responsibility for the upkeep and cleanliness of the restaurant. Outside these general statements, the defendant provided no further information on when the specific area of the plaintiff’s fall had last been inspected or cleaned … . Rhoden v 515 Rest., LLC, 2025 NY Slip Op 02617, Second Dept 4-30-25

Practice Point: This case presents another instance of the failure to demonstrate a lack of constructive notice of the condition alleged to have caused plaintiff’s slip and fall. A lack of constructive notice is demonstrated by specific proof the area of the fall was cleaned or inspected close in time to the fall, not by proof of general cleaning practices.

 

/ , ,

“LAW OFFICE FAILURE” WAS NOT A REASONABLE EXCUSE FOR FAILING TO ANSWER THE COMPLAINT; DEFENDANT’S MOTION TO COMPEL THE PLAINTIFF TO ACCEPT A LATE ANSWER SHOULD NOT HAVE BEEN GRANTED (SECOND D

The Second Department, reversing Supreme Court, determined plaintiff did not present a reasonable excuse for failing to timely answer the complaint. Therefore, plaintiff’s motion to compel defendant to accept the late answer should not have been granted:

A defendant seeking to compel the plaintiff to accept a late answer “must show both a reasonable excuse for the default and the existence of a potentially meritorious defense” … . “Generally, the determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the court; however, reversal is warranted where the court improvidently exercises that discretion” … .

Here, the defendant failed to establish a reasonable excuse for its defaults based upon law office failure. “[T]he movant must provide a detailed and credible explanation for the purported law office failure” … . “[A] conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse” … . Here, the defendant’s counsel asserted in a conclusory and undetailed manner that the initial deadline to serve an answer and the extension consented to by the plaintiff’s former counsel were missed due to an office backlog and miscalendaring, and that the plaintiff’s motion for leave to enter a default judgment was “misplaced” in the office … . Raphael v City of Peekskill, 2025 NY Slip Op 02616, Second Dept 4-30-25

Practice Point: Here allegations of “law office failure” did not warrant compelling the plaintiff to accept a late answer.

 

/ , ,

DEFENDANT WAS NOT GIVEN A REASONABLE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA; MATTER REMITTED FOR THAT PURPOSE AND A REPORT TO THE APPELLATE COURT (SECOND DEPT).

The Second Department, remitting the matter and holding the appeal, determined the judge should have conducted an inquiry when defendant stated he wished to withdraw his guilty plea. The defendant did not have a reasonable opportunity to present his reasons:

“When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rest[s] largely in the discretion of the Judge to whom the motion is made and a hearing will be granted only in rare instances” … . “[O]ften a limited interrogation by the court will suffice” … . “[W]hen a motion ‘is patently insufficient on its face, a court may simply deny the motion without making any inquiry'” … . Nevertheless, “[t]he defendant should be afforded reasonable opportunity to present his [or her] contentions and the court should be enabled to make an informed determination” … .

Here, the defendant was not afforded a reasonable opportunity to present his contentions regarding his application to withdraw his plea of guilty and, consequently, the court was not able to make an informed determination of that application … . Accordingly, the matter must be remitted to the County Court, Nassau County, for further proceedings on the defendant’s application to withdraw his plea of guilty, and thereafter a report to this Court limited to the County Court’s findings with respect to the application and whether the defendant established his entitlement to the withdrawal of his plea of guilty. People v Nesbitt, 2025 NY Slip Op 02611, Second Dept 4-30-25

Practice Point: A defendant must be afforded a “reasonable opportunity” to explain any request to withdraw a guilty plea. The appellate court can hold the appeal and remit the case to afford the defendant that opportunity.

 

/ , ,

WHETHER FAMILY COURT HAS SUBJECT MATTER JURISDICTION OVER THIS FAMILY OFFENSE PROCEEDING DEPENDS ON WHETHER THERE EXISTS AN “INTIMATE RELATIONSHIP” BETWEEN THE CHILD AND THE RESPONDENT, THE PARAMOUR OF PETITIONER’S FORMER HUSBAND; BEFORE THE COURT CAN RULE ON THE JURISDICTION ISSUE A HEARING TO DETERMINE WHETHER THERE IS AN “INTIMATE RELATIONSHIP” IS REQUIRED; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have held a hearing before ruling it did not have subject matter jurisdiction in this family offense proceeding. The proceeding was against respondent, the paramour of petitioner’s former husband. Whether Family Court has jurisdiction depends on whether the respondent is or has been in an “intimate relationship” with petitioner’s child:

“Beyond expressly excluding from the definition of ‘intimate relationship’ a ‘casual acquaintance’ and ‘ordinary fraternization between two individuals in business or social contexts'” … , “the [L]egislature left it to the courts to determine, on a case-by-case basis, what qualifies as an ‘intimate relationship’ within the meaning of Family Court Act § 812(1)(e)” … . The factors that a court may consider while making such a determination are “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … . “[T]he determination as to whether persons are or have been in an ‘intimate relationship’ within the meaning of Family Court Act § 812(1)(e) is a fact-specific determination which may require a hearing” … .

Here, in light of the parties’ conflicting allegations as to whether there was an “intimate relationship” between the child and the respondent within the meaning of Family Court Act § 812(1)(e), the Family Court, prior to determining whether it had subject matter jurisdiction, should have conducted a hearing on that issue … . Matter of De Phillips v Perez, 2025 NY Slip Op 02588, Second Dept 4-30-25

Practice Point: Family Court can have subject matter jurisdiction over a family offense petition against a person who is not a family member but has an “intimate relationship” with the child. Here Family Court should not have found it did not have subject matter jurisdiction without first holding a hearing to determine whether there was an “intimate relationship” between the respondent and petitioner’s child.​

 

/ ,

GRANDFATHER DEMONSTRATED “EXTRAORDINARY CIRCUMSTANCES” AFFORDING HIM STANDING TO PETITION FOR CUSTODY OF THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the maternal grandfather demonstrated extraordinary circumstances and therefore had standing to seek custody of the child. The matter was remitted for a custody award based on the best interests of the child:

“Pursuant to Domestic Relations Law § 72(2)(a), a grandparent has standing to seek custody of a child where the grandparent demonstrates the existence of extraordinary circumstances, such as ‘surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time,’ ‘or other like extraordinary circumstances'” … . An “extended disruption of custody” between the child and the parent “shall constitute an extraordinary circumstance” … . “The statute defines ‘extended disruption of custody’ as including, but not limited to, ‘a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents'” … . “However, the statute does not preclude a court from finding the existence of extraordinary circumstances even if the prolonged separation lasted less than 24 months” … . “Moreover, lack of contact is not a separate element under th[e] statute, ‘[r]ather, the quality and quantity of contact between the parent and child are simply factors to be considered in the context of the totality of the circumstances when determining whether the parent voluntarily relinquished care and control of the child, and whether the child actually resided with the grandparents for the required “prolonged” period of time'” … . “‘Inasmuch as the Family Court is in the best position to evaluate the credibility, temperament, and sincerity of the parties, its determination should be set aside only if it lacks a sound and substantial basis in the record'” … .

The evidence at the hearing established that, even though the father had regular contact and parental access with the child, the maternal grandparents have taken care of the child for most of her life and provided her with stability. Additionally, the father allowed the mother and the maternal grandparents to assume control over, and responsibility for the care of, the child while the father assumed the role of a noncustodial parent, the child has developed a close relationship with her half-siblings and extended family in New York, and the child expressed a desire to continue residing with the maternal grandfather … . Matter of Clifton C. v Tory P. R., 2025 NY Slip Op 02585, Second Dept 4-30-25

Practice Point: Here the maternal grandparents had cared for the child for most of her life and father had assumed the role of a noncustodial parent. These and other factors rose to the level of “extraordinary circumstances” affording grandfather standing to petition for custody.

 

/ , , ,

THE LAWSUIT AGAINST DEFENDANT RESIDENTIAL NURSING FACILITY STEMMING FROM PLAINTIFF’S DECEDENT’S COVID-19-RELATED DEATH IS PRECLUDED BY THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA); THE REPEAL OF THE ACT IS NOT RETROACTIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence-based lawsuit against defendant residential nursing facility stemming from plaintiff’s decedent’s death from COVID-19 was precluded by the immunity conferred by the Emergency or Disaster Treatment Protection Act (Public Health Law former art 30-D, §§ 3080-3082, repealed by L 2021, ch 96, § 1) (EDTPA). The repeal of the EDTPA was not retroactive:

The EDTPA, as effective August 3, 2020, to April 5, 2021, provided, with certain exceptions, that a health care facility “shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of providing health care services,” if: (a) the health care facility “is providing health care services in accordance with applicable law, or where appropriate pursuant to a COVID-19 emergency rule”; (b) the act or omission occurs in the course of providing health care services and the treatment of the individual is impacted by the health care facility’s “decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives”; and (c) the health care facility “is providing health care services in good faith” (Public Health Law former § 3082[1][a]-[c]). …

Here, the Supreme Court should have granted the defendant’s motion to dismiss the complaint on the ground of immunity … . Contrary to the plaintiff’s contention, the repeal of the EDTPA is not retroactive … . Lara v S&J Operational, LLC, 2025 NY Slip Op 02582, Second Dept 4-30-25

Practice Point: Although the EDTPA has been repealed. the repeal is not applied retroactively. The COVID-19-related immunity conferred by the act precluded the lawsuit here.

 

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