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DEFENDANT PLED GUILTY TO TWO COUNTS OF CRIMINAL POSSESSION OF A WEAPON; MONTHS LATER THE PEOPLE INDICTED THE DEFENDANT ON A MURDER CHARGE, BASED ON THE SAME FACTS; COUNTY COURT SHOULD NOT HAVE GRANTED DEFENDANT’S CPL 40.40 MOTION TO DISMISS THE MURDER INDICTMENT; THERE WAS A STRONG, COMPREHENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court’s grant of defendant’s motion to dismiss the murder indictment (CPL 40.40(2)), determined that the criminal possession of a weapon charges to which defendant pled guilty were not a barrier to a subsequent murder charge based on the same underlying facts. There was a comprehensive dissent:

… [O]n or about November 20, 2021, the 90-year-old victim was shot and killed in her home. When police officers arrived at the scene, defendant, the victim’s granddaughter, was found in the house and appeared to be in distress. Defendant gave the officers conflicting accounts of what had happened to her grandmother but consistently stated that there were guns in the house that defendant had been playing with. A pistol and a revolver were recovered from the home. The People presented evidence to a grand jury relating to the two firearms. The evidence included witness testimony from various police officers about the crime scene, including that the victim appeared to have suffered a gunshot wound to the chest and about statements made to them by defendant. Defendant was indicted on two counts of criminal possession of a firearm (Penal Law § 265.01-b [1]), and she pleaded guilty to both counts. * * *

“CPL 40.40 prohibits a separate prosecution of joinable offenses that arise out of the same transaction and involve different and distinct elements under circumstances wherein no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions” … . Under CPL 40.40 (1), “[w]here two or more offenses are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction, . . . such person may not, under circumstances prescribed in this section, be separately prosecuted for such offenses.” A “criminal transaction” is defined as “conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2]). “When (a) one of two or more joinable offenses [that are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction] is charged in an accusatory instrument, and (b) another is not charged therein, or in any other accusatory instrument filed in the same court, despite possession by the [P]eople of evidence legally sufficient to support a conviction of the defendant for such uncharged offense, and (c) either a trial of the existing accusatory instrument is commenced or the action thereon is disposed of by a plea of guilty, any subsequent prosecution for the uncharged offense is thereby barred” (CPL 40.40 [2] …). Under the facts and circumstances of this case, we conclude that the conduct related to possession of the firearms and that related to the murder involved separate and distinct criminal acts that were not part of the same criminal transaction … . Thus, the murder count was properly charged on a separate accusatory instrument and the People did not violate CPL 40.40.

From the dissent:

… [P]rosecution of the murder charge is barred by CPL 40.40 (2) because it is joinable under CPL 200.20 (2) (a) with the criminal possession of a firearm offenses charged in the prior indictment, and the People possessed legally sufficient evidence to support a murder conviction against defendant when she pleaded guilty to the firearm offenses. Where, as here, “the evidence against a person is in the prosecutor’s hands, [they] may not—as a player in a game of chance—deal out indictments one at a time” … . People v Harris, 2025 NY Slip Op 03419, Fourth Dept 6-6-25

Practice Point: Here defendant pled guilty to two counts of criminal possession of a weapon and was subsequently indicted for murder based on the same facts. The majority reversed County Court’s granting of the CPL 40.40(2) motion to dismiss the indictment, concluding the possession-of-a-weapon and murder charges were not part of the same criminal transaction. There was a strong dissent.

 

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THE ERRONEOUS “LOSS OF CHANCE” JURY INSTRUCTION REQUIRED REVERSAL; THE CHARGE USED THE PHRASES “SUBSTANTIAL FACTOR” AND “SUBSTANTIAL PROBABILITY” WHEN THE CORRECT PHRASE IS “SUBSTANTIAL POSSIBILITY” IN REFERENCE TO WHETHER A BETTER OUTCOME WAS DENIED DUE TO A DEVIATION FROM THE STANDARD OF CARE (FOURTH DEPT).

The Fourth Department, reinstating the complaint and ordering a new trial in this medical malpractice action, determined the “loss of chance” jury instruction was erroneous and required reversal:

As this Court has held since at least 2011, a “loss of chance instruction” is “entirely appropriate for . . . omission theories” in medical malpractice actions … . Although the Pattern Jury Instructions did not include a loss of chance pattern charge until 2023, i.e., after the second trial in this matter took place in December 2022, this Court had already issued numerous decisions prior to December 2022 indicating that “the loss of chance theory of causation . . . requires only that a plaintiff ‘present evidence from which a rational jury could infer that there was a “substantial possibility” that the patient was denied a chance of the better outcome as a result of the defendant’s deviation from the standard of care’ ” … .

Here, the court instructed the jury that, in order for plaintiff to recover under a loss of chance theory, it was plaintiff’s burden to establish that the act or omission alleged was a “substantial factor in bringing about the death.” The court also instructed the jury that, if it should find that “there was a substantial probability that the decedent . . . would have survived . . . if he had received proper treatment,” then it could find that defendants’ alleged negligence was a “substantial factor” in causing his death … .

… [T]he charge, as given, did not ” ‘adequately convey[ ] the sum and substance of the applicable law’ ” to the jury … . The primary issue at trial was whether defendants deviated from accepted standards of care in failing to timely treat decedent. Inasmuch as the “court did not adequately charge the jury concerning” the appropriate standard to determine that issue, we conclude that “the court’s failure to define [the correct] standard for the jury” cannot be considered harmless under the circumstances of this case … . Wright v Stephens, 2025 NY Slip Op 03416, Fourth Dept 6-7-25

Practice Point: The “loss of chance” medical malpractice jury instruction requires that plaintiff show there was a “substantial possibility” that a deviation from the standard of care precluded a better outcome. Here the judge used the phrase “substantial probability,” requiring reversal.

 

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THE JUDGE’S PROVIDING ERRONEOUS INFORMATION ABOUT THE MAXIMUM SENTENCE DEFENDANT WAS FACING NEED NOT BE PRESERVED FOR APPEAL AND RENDERED THE GUILTY PLEA INVOLUNTARY (THIRD DEPT).

he Third Department, reversing defendant’s conviction by guilty plea, determined the judge’s providing erroneous information about the maximum sentence defendant was facing did not need to be preserved for appeal and rendered the guilty plea involuntary:

… County Court advised [defendant] that, if he elected to proceed to trial and was convicted of all offenses as a second felony drug offender, he faced a sentencing exposure of 36 years in prison rather than the correct, capped term of 30 years … . … [A]s the Court of Appeals recently made clear, where “the court provides the defendant with erroneous information concerning their maximum sentencing exposure that is contrary to the undisputed text of the Penal Law, fails to correct its error on the record, and the defendant has no apparent reason to question the accuracy of that information, the defendant need not preserve a challenge to the voluntariness of the guilty plea on that ground” … . * * *

Although defendant here was no stranger to the criminal justice system and received a reasonable sentencing commitment from County Court, the plea colloquy itself reflects that defendant believed that he had been overcharged and questioned whether he would be convicted if he went to trial. Defendant made clear during the plea colloquy, in fact, that he was only pleading guilty to the indictment because he would rather[*3]”get the high/low of 16/14″ than go to trial and risk “more time in state prison.” Even then, defendant remained conflicted about pleading guilty until the moment he entered his formal plea, asking County Court immediately before he did so to repeat the potential sentencing exposure he faced if he did not “want to go through all of this and [went] to trial.” … .People v Shaw, 2025 NY Slip Op 03358, Third Dept 6-5-25

Practice Point” Here the judge told defendant he was facing 36 years in prison when the actual maximum was 30. That error need not be preserved for appeal and, based on defendant’s remarks and questions at sentencing, was deemed to have rendered defendant’s guilty plea involuntary.

 

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HERE A MOTION TO RENEW AN APPEAL WAS GRANTED AND THE PRIOR APPELLATE DECISION WAS VACATED BASED ON THE ENACTMENT OF THE FORECLOSURE ABUSE PREVENTION ACT (FAPA); THE THIRD DEPARTMENT HAD HELD THE FORECLOSURE ACTION WAS TIMELY BECAUSE THE BANK HAD DE-ACCELERATED THE DEBT; BUT FAPA RENDEREDTHE DE-ACCELERATION INVALID; SO THE INITIAL SUPREME COURT DECISION GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS WAS REINSTATED (THIRD DEPT).

The Third Department granted defendants’ motion to renew an appeal and vacated its prior decision because of the subsequent enactment of the Foreclosure Abuse Prevention Act (FAPA). The Third Department had reversed summary judgment in defendants’ favor on the ground the bank had de-accelerated the debt rendering the foreclosure action timely. But the FAPA now precludes such a de-acceleration and applies retroactively. Therefore Supreme Court’s decision granting summary judgment dismissing the foreclosure action was reinstated:

Defendants now move to renew, contending that the enactment of the Foreclosure Abuse Prevention Act (hereinafter FAPA) is a change in law that requires reversal of our prior decision. Specifically, defendants claim that the second action is now barred by the statute of limitations because FAPA applies retroactively, and such law prohibits the reset of a statute of limitations by the unilateral act of a party such as by a de-acceleration letter. * * *

… [S]ince the second action was brought more than six years after plaintiff accelerated the debt, it is barred by the statute of limitations applicable to foreclosure actions … . Thus, defendants’ motion to renew is granted and this Court’s previous decision is vacated. On the merits of the underlying appeal, pursuant to FAPA, defendants were entitled to summary judgment dismissing the complaint. Accordingly, we affirm the judgment of Supreme Court, albeit on different grounds. HSBC Bank, USA, N.A. v Bresler, 2025 NY Slip Op 03363, Third Dept 6-5-25

Practice Point: Although the issue was not discussed in the Third Department’s decision, apparently CPLR 2221 [e] [2] applies to a motion for renewal of an appeal.

 

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“NO TRESPASSING” AND “PRIVATE PROPERTY” SIGNS WERE POSTED ON THE PROPERTY WHERE DEFENDANT’S VEHICLE WAS PARKED; THEREFORE THE DEPUTY WHO WALKED UP THE DRIVEWAY TO EXAMINE DEFENDANT’S VEHICLE CONDUCTED AN ILLEGAL, WARRANTLESS SEARCH; THE VEHICLE, DEFENDANT’S STATEMENTS AND THE EVIDENCE SEIZED PURSUANT TO SUBSEQUENT SEARCH WARRANTS SHOULD HAVE BEEN SUPPRESSED; THE VEHICLE HAD BEEN INVOLVED IN A FATAL ACCIDENT AND THE DRIVER HAD FLED THE SCENE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and granting the motion to dismiss, determined the posted “No Trespassing” and “Private Property” signs created “a reasonable expectation of privacy” for the driveway of the property where defendant’s vehicle was parked. Therefore, the deputy who walked up the driveway to examine the defendant’s vehicle conducted an illegal search. The vehicle, which had stuck and killed one bicyclist and seriously injured another, as well as the defendant’s statements and evidence seized pursuant to subsequent search warrants, should have been suppressed:

… [T]wo bicyclists were struck by a motor vehicle … . One bicyclist died, and the other was severely injured. The driver fled the scene. After speaking with witnesses and collecting physical evidence from the roadway, the police determined that the involved vehicle was a gray Jeep Cherokee. At some point thereafter, a sheriff’s deputy discovered a vehicle matching this description parked in the driveway on property where defendant resided as a tenant. Because the front of the vehicle was not visible from the street, the deputy walked up the driveway in order to perform a closer inspection. Alongside the driveway were posted signs stating, “No Trespassing” and “Private Property.” The deputy observed blood on, and front-end damage to, the vehicle, consistent with the crash, and radioed his findings to his fellow law enforcement officers. In response, a sheriff’s investigator traveled to the residence. After conferring with the deputy, the investigator talked to the owner of the property and obtained surveillance footage. The investigator then spoke to defendant and secured her consent to search the vehicle. Defendant was taken to a hospital for a blood test and to the State Police barracks for a further interview. The investigator later applied for and obtained two search warrants, one for the vehicle and the other for defendant’s cell phone records. * * *

“Warrantless searches and seizures within the privacy of the home are presumptively unreasonable, subject only to carefully circumscribed exceptions to the warrant requirement” … . That said, a person will not necessarily be entitled to the same protection in a private driveway leading to a home unless he or she has exhibited “some outward manifestation” of a reasonable expectation of privacy in this area … . In that regard, New York law recognizes that the posting of a “No Trespassing” sign on private property constitutes such a manifestation … . Therefore, a police officer seeking to conduct a search on posted property may only do so with a warrant or while operating under a recognized exception to the warrant requirement … . People v Suprunchik, 2025 NY Slip Op 03364, Third Dept 6-5-25

Practice Point: The posting of “No Trespassing” of “Private Property” signs on the curtilage of a residence manifests a reasonable expectation of privacy in the curtilage and triggers the need for a warrant before entering the curtilage. Here the deputy walked up the driveway to inspect a vehicle which the deputy suspected had been involved in a fatal accident. The deputy saw blood on the front of the vehicle. That was an illegal warrantless search requiring suppression of the vehicle, statements made by the defendant, and evidence seized pursuant to subsequent search warrants.

 

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THE TAX APPEALS TRIBUNAL’S DETERMINATION THAT PETITIONERS CANNOT REDUCE THEIR NEW YORK ADJUSTED GROSS INCOME BY THE AMORTIZED PREMIUMS ON THEIR OUT-STATE-BONDS UPHELD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, upheld the Tax Appeals Tribunal’s determination that petitioners can not reduce their New York adjusted gross income by amortized premiums on their out-of-state bonds:

Petitioners are married and residents of New York. During the years 2012 through 2016 (hereinafter the years at issue), they engaged in an investment strategy that included purchasing out-of-state bonds on the secondary market. Due to the initial interest rate of the bonds being higher than the prevailing market rate at the time of purchase, petitioners also paid an additional premium to acquire the bonds. Where the duration of a bond exceeded one year, petitioners further made an upfront premium payment for each remaining year until the bond’s maturity. As relevant here, the amount of the premium paid for each year of the bond is called the amortized premium.

On their respective tax returns for the years at issue, petitioners sought to reduce their New York adjusted gross income by the amortized premiums on their out-of-state bonds. Following an audit, notices of deficiency were issued to petitioners by the Department of Taxation and Finance (hereinafter the Department) stating that they owed additional income taxes for the years at issue, plus interest and penalties. Thereafter, the Department determined that petitioners could not subtract the premiums directly from their interest income, but rather may only report such premiums as part of their itemized deduction, and ultimately issued notices of disallowance. Matter of Ciardullo v McDonnell, 2025 NY Slip Op 03365, Third Dept 6-5-25

 

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THE STATUTE OF LIMITATIONS FOR BREACH OF FIDUCIARY DUTY BEGINS TO RUN WHEN THERE HAS BEEN AN OPEN REPUDIATION OF FIDUCIARY OBLIGATIONS; HERE THERE HAS NOT BEEN SUCH AN OPEN REPUDIATION; THE STATUTE NEVER BEGAN TO RUN AND THE MOTION TO DISMISS THE SHAREHOLDER DERIVATIVE ACTION AS UNTIMELY SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that this shareholder derivative action, which alleged breach of fiduciary duty, should not have been dismissed as time barred. Open repudiation of the the fiduciary obligation, which triggers the running of the statute of limitations, never occurred:

To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired” … . “[C]laims alleging a breach of fiduciary duty do not accrue until there is either an open repudiation of the fiduciary obligation or a judicial settlement of the account” … . This is so because, “absent either repudiation or removal, the aggrieved part[y] [is] entitled to assume that the fiduciary would perform his or her fiduciary responsibilities” … . “The party asserting the statute of limitations defense bears the burden of proof on the issue” … . “Open repudiation requires proof of a repudiation by the fiduciary which is clear and made known to the beneficiaries” … . “Where there is any doubt on the record as to the conclusive applicability of a [s]tatute of [l]imitations defense, the motion to dismiss the proceeding should be denied, and the proceeding should go forward” … .

Here, defendants did not proffer, or even assert, that they have openly repudiated their obligations as fiduciaries or that the relationship has otherwise terminated. Lambos v Karabinis, 2025 NY Slip Op 03367, Third Dept 6-5-25

Practice Point: Here there was never an open repudiation of fiduciary obligations so the statute of limitations on the breach-of-fiduciary-duty cause of action never began to run.

 

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MOTHER’S BOYFRIEND, WHO LIVED WITH MOTHER AND DAUGHTER FOR FIVE MONTHS BEFORE ABUSING THE DAUGHTER, MET THE CRITERIA FOR A “PERSON LEGALLY RESPONSIBLE FOR THE CHILD” AND WAS THEREFORE A PROPER PARTY IN THIS ABUSE/NEGLECT PROCEEDING; COMPREHENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, affirming Family Court’s abuse finding against mother’s live-in boyfriend, Robert, over a comprehensive two-justice dissent, determined Roberto met the criteria for “a person legally responsible” for the child, B.F. B.F. alleged Roberto touched her inner thigh and vagina. Both the majority and the dissenters go through the criteria for “a person legally responsible for the child” in great detail:

Family Court conducted a fact-finding hearing over several days. B.F. testified that Roberto lived with her and her mother for approximately five months. She stated that during the time they lived together, she and Roberto would “always talk to each other” and grew “very close.” * * *

B.F.’s mother testified that Roberto moved in a week after they started dating. Roberto came home around 6:00 p.m. and left around 7:00 a.m. for work. Roberto contributed $100 every week for rent, bills, and home expenses. * * *

The court credited the testimony of B.F. and her mother, which established that Roberto resided in the home for five months prior to the abuse.

The determination of whether a particular person has acted as the functional equivalent of a parent is a “fact-intensive inquiry which will vary according to the particular circumstances of each case” … . Factors to consider include “(1) ‘the frequency and nature of the contact,’ (2) ‘the nature and extent of the control exercised by the respondent over the child’s environment,’ (3) ‘the duration of the respondent’s contact with the child,’ and (4) ‘the respondent’s relationship to the child’s parent(s)'” … . These factors “are not meant to be exhaustive, but merely illustrate some of the salient considerations in making an appropriate determination” … . The weight given to each factor depends on the facts and circumstances of the case … . Matter of B.F. v Administration for Children’s Servs., 2025 NY Slip Op 03393, First Dept 6-5-25

Practice Point: Consult this decision for an exhaustive discussion of the criteria for a “person legally responsible for the child” in the context of a neglect or abuse proceeding. Here mother’s boyfriend, who lived with mother and daughter for five months prior to the abuse of the daughter, was deemed to meet the criteria.

 

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HERE FATHER MOVED TO DISMISS MOTHER’S PETITION TO MODIFY CHILD SUPPORT AT THE CLOSE OF MOTHER’S PROOF; AT THAT STAGE OF THE PROCEEDINGS THE COURT MUST ACCEPT PETITIONER’S EVIDENCE AS TRUE AND RESOLVE ALL CREDIBILITY QUESTIONS IN PETITIONER’S FAVOR; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

he Third Department, reversing Family Court’s dismissal of mother’s petition to modify child support, determined that the judge applied the wrong standard when deciding father’s motion to dismiss at the close of mother’s proof. At that stage the judge must accept petitioner’s evidence as true, and must resolve all credibility issues in petitioner’s favor. The judge’s comments on witness credibility indicated the correct standard was not applied:

A noncustodial parent’s statutory duty to support his or her child until they reach 21 years of age may be suspended where the noncustodial parent establishes that the custodial parent has wrongfully interfered with or withheld visitation rights … . Although the parent seeking such suspension must ultimately demonstrate “deliberate frustration” or “active interference” with their visitation rights by a “preponderance of the evidence” … , where, as here, “Family Court is tasked with deciding a motion to dismiss at the close of the petitioner’s proof, the court must accept the petitioner’s evidence as true and afford the petitioner every favorable inference that could reasonably be drawn from that evidence, including resolving all credibility questions in the petitioner’s favor” … . * * *

Family Court’s commentary on witness credibility in resolving the subject motion to dismiss suggests to this Court that an incorrect legal standard was applied … . When viewed in the proper light, we find that the … proof was sufficient to withstand a motion to dismiss …  Thus, without passing judgment upon the ultimate success of the mother’s claim, we reverse. Matter of Crystal NN. v Joshua OO, 2025 NY Slip Op 03368, Third Dept 6-5-25

Practice Point: In this modification of child support proceeding, father moved to dismiss mother’s petition at the close of mother’s proof. In evaluating the motion at that stage of the proceedings, the court must accept all of petitioner’s evidence as true, afford the petitioner all favorable inferences from the evidence, and resolve all credibility issues in petitioner’s favor. The failure to apply those standards to consideration of the motion to dismiss requires reversal.

 

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AN ADMINISTRATIVE PROCEEDING WAS BROUGHT BY THE UNIVERSITY AGAINST PETITIONER-STUDENT BASED UPON ANOTHER STUDENT’S (THE REPORTING INDIVIDUAL’S) ALLEGATIONS SHE WAS SEXUALLY ASSAULTED; THE UNIVERSITY’S TITLE IX GRIEVANCE POLICY PROVIDES THAT WHERE, AS HERE, THE REPORTING INDIVIDUAL IS ABSENT FROM THE HEARING AND IS NOT SUBJECT TO CROSS-EXAMINATION, ANY DETERMINATION BY THE UNIVERSITY CANNOT BE BASED UPON STATEMENTS ATTRIBUTED TO THE REPORTING INDIVIDUAL; THE DETERMINATION WAS ANNULLED ON THAT GROUND (THIRD DEPT).

The Third Department, annulled the university’s determination petitioner had violated the university’s “Community Rights and Responsibilities” by sexually assaulting the reporting individual. Petitioner did not deny kissing an touching the reporting individual, but contended all the interactions were consensual. The reporting individual did not testify at the hearing. The university’s Title IX grievance policy provides that, when the reporting individual does not testify and is not subject to cross-examination, the determination cannot be based upon any statement attributed to the reporting individual. Here statements by the reporting individual were the basis for the university’s determination:

Petitioner contends that he was denied due process because he was not afforded the opportunity to question the reporting individual, who did not testify at the hearing or otherwise submit to cross-examination. Under the circumstances presented here, we agree and conclude that annulment is required. “In general, there is a limited right to cross-examine an adverse witness in an administrative proceeding, and the right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings” … . Nevertheless, “[i]t is well established that once having adopted rules or guidelines establishing the procedures to be followed in relation to suspension or expulsion of a student, colleges or universities — both public and private — must substantially comply with those rules and guidelines” … . Matter of Bibler v State Univ. of N.Y. at Albany, 2025 NY Slip Op 03373, Third Dept 6-5-25

Practice Point: In a university disciplinary proceeding stemming from an allegation of sexual assault, the right to cross-examine the accuser is not considered an essential requirement of due process. However, the university is required to abide by its own rules. Here the rules stated that, where the accuser is absent from the hearing and is not cross-examined, the university’s determination cannot be based upon statements made by the accuser. The university’s failure to comply with that rule required that the determination be annulled.

 

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