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A STAIRWAY MAY CONSTITUTE A “SAFETY DEVICE” WITHIN THE MEANING OF LABOR LAW 240(1) AND A STAIRWAY NEED NOT BE DEFECTIVE TO TRIGGER LABOR LAW 240(1) LIABILITY; HERE IT WAS ALLEGED THE STAIRWAY WAS INADEQUATELY ILLUMINATED AND WAS OBSTRUCTED BY A CABLE WHICH CAUSED PLAINTIFF TO TRIP AND FALL (FIRST DEPT). ​

The First Department, affirming the denial of defendant’s (RBS’s) motion for summary judgment, over a two justice dissent, determined that a stairway need not be defective to fall under the coverage of Labor Law 240(1). Here plaintiff alleged the stairway was inadequately illuminated and was obstructed with a cable which caused plaintiff to trip and fall. The stairway can constitute a safety device within the meaning of Labor Law 240(1) and the majority concluded the stairway itself need not be defective to trigger Labor Law 240(1) liability:

Questions of fact exist as to whether the staircase constituted a Labor Law § 240(1) safety device … .

… [In] “the First Department, falls from permanent appurtenances which function as the only means of access are . . . entitled to Labor Law § 240(1) protection,” including “stairways . . . utilized . . . in the performance of the plaintiff’s work.” Consistent with this, RBS cites no controlling caselaw holding that Labor Law § 240(1) does not apply to injuries incurred on stairways that are not structurally defective….  … T]he dissent makes an argument … that Labor Law § 240(1) claims can only be made as to injuries incurred on stairways that are structurally defective. The dissent cites three cases to support its claim that Labor Law § 240(1) claims involving stairways have been sustained only when the stairways involved were structurally defective. However, none of these cases sustained a Labor Law § 240(1) claim; rather, they affirmed denials of summary judgment, and in any event, did not turn on the structural soundness of the staircases at issue … . It is improper for us to decide an issue that appellant did not raise and that respondent was not given an opportunity to address … . Mazzurco v Broadway 52nd L.P., 2026 NY Slip Op 04822, First Dept 7-30-26

Practice Point: In the First Department, a stairway may constitute a safety device within the meaning of Labor Law 240(1) and the stairway itself need not be defective to trigger Labor Law 230(1) liability.

Practice Point: An appeal should not be decided on a ground not raised by the appellant.

 

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THE ATTEMPTED RAPE AND ROBBERY CONVICTIONS WERE “AGAINST THE WEIGHT OF THE EVIDENCE” (FOURTH DEPT).

The Fourth Department, reversing the attempted rape and robbery convictions, determined there was insufficient evidence defendant intended to have intercourse with the victim there was insufficient evidence defendant intended to deprive the victim of her emergency alarm which he possessed only briefly and then discarded. The convictions were deemed “against the weight of the evidence.” The defendant was an inmate in a correctional facility and the victim a civilian employee. The defendant attacked and fell on top of the victim after following her to a secluded area of the prison kitchen. The assault conviction was affirmed:

… [W]e conclude that the People failed to prove beyond a reasonable doubt that defendant intended and attempted to have sexual intercourse with the victim. Beyond the surrounding circumstances, such as the location of the attack and defendant’s insistence that the victim be quiet, the sole evidence presented by the People from which a factfinder could infer any sexual component to defendant’s actions was the victim’s testimony that, after they fell to the floor and defendant was on top of her, defendant’s “hands were all over [her] at that point.” The victim further acknowledged, however, that defendant never physically reached underneath any of her clothing and never attempted to remove her pants. Unlike comparable cases, the People here adduced no evidence of a particularized sexual motivation or component underlying defendant’s actions, nor did the People present evidence—beyond the generalized testimony that defendant’s hands were “all over” the victim—that defendant attempted to engage specifically in sexual intercourse with the victim … . Even though “the absence of an explicit demand for sex does not undermine a finding of attempted rape” under circumstances from which a factfinder could reasonably conclude that the defendant intended and attempted to engage, specifically, in forcible sexual intercourse … , we conclude that the evidence is not strong enough to establish the existence of such circumstances in this case. People v Jenkins, 2026 NY Slip Op 04677, Fourth Dept 7-24-26

Practice Point: Consult this decision for two rare examples of “against the weight of the evidence” reversals.

 

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TO RENDER THE “HARMLESS ERROR” DOCTRINE INAPPLICABLE, THERE MUST BE “OVERWHELMING” EVIDENCE OF GUILT, WHICH IS MORE THAN “PROOF BEYOND A REASONABLE DOUBT;” HERE THERE WAS “OVERWHELMING” EVIDENCE OF GUILT FOR THE BURGLARY COUNTS, BUT ONLY “PROOF BEYOND A REASONABLE DOUBT” FOR THE SHARED INTENT ELEMENT OF THE ASSAULT COUNT; THEREFORE THE ERROR IN ADMITTING IDENTIFICATION EVIDENCE COULD NOT BE DEEMED HARMLESS FOR THE ASSAULT COUNT AND A NEW TRIAL ON THAT COUNT WAS ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s assault conviction, determined the evidence defendant shared the codefendant’s intent to cause physical injury was not “overwhelming,” therefore the harmless error standard did not apply. The error, which was deemed harmless for other counts for which the evidence was deemed “overwhelming,” was the introduction of identification evidence where no CPL 710.30 notice was provided by the People. The motion court determined the identification was “confirmatory,” but the Fourth Department disagreed because the victim only met defendant once for a few minutes:

An identification is considered confirmatory only where, “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 exception “does not apply where the familiarity emanates from a brief encounter” … .

Here, the victim testified at the Rodriguez hearing that he had met defendant only once before the crimes were committed, and then for only a few minutes. Under the circumstances, it cannot be said, as a matter of law, that there was ” ‘little to no risk’ ” of misidentification resulting from an unduly suggestive photo array or identification procedure … . * * *

The People were required to prove, among other things, that defendant shared the codefendant’s intent to cause physical injury to the victim, and they proved beyond a reasonable doubt that defendant shared the requisite intent by presenting evidence that defendant punched the victim upon entering the apartment, albeit with no discernable effect. Overwhelming proof of guilt, however, is a greater burden than proof beyond a reasonable doubt … and, in our view, the evidence as it relates to the intent element of assault in the second degree does not satisfy that burden. The harmless error doctrine is thus inapplicable with respect to the assault charge … . We therefore modify the judgment by reversing that part convicting defendant of assault in the second degree, granting the part of the omnibus motion seeking preclusion of the identification testimony, and granting defendant a new trial on count 3 of the indictment. People v Hurst, 2026 NY Slip Op 04717, Fourth Dept 7-24-26

Practice Point: This decision highlights a difference between a “legal sufficiency” and a “weight of the evidence” analysis on appeal. Under a “weight of the evidence” analysis, if the proof of guilt is “beyond a reasonable doubt” (i.e., legally sufficient), but is not “overwhelming,” the harmless error doctrine in inapplicable. [EDITOR’S NOTE: I HAVE DIFFICULTY UNDERSTANDING THE CRITERIA FOR “LEGAL INSUFFICIENCY” VERSUS “AGAINST THE WEIGHT OF THE EVIDENCE” AT THE APPELLATE LEVEL. THIS DECISION APPEARS TO ILLUSTRATE ONE OF THE DIFFERENCES. IF ANYONE CAN HELP ME UNDERSTAND THE RELEVANT ANALYTICAL CRITERIA, I WOULD BE MOST GRATEFUL.]

 

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WHERE THE SENTENCING JUDGE ORDERS DOCCS TO ENROLL DEFENDANT IN A SHOCK PROBATION PROGRAM, DOCCS CANNOT CONSIDER THE ORDER TO BE MERELY A RECOMMENDATION WHICH CAN BE IGNORED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined the Department of Corrections and Community Supervision (DOCCS) did not have the discretion to treat Supreme Court’s order to enroll petitioner in the shock probation program as a recommendation which need not be implemented. Although the petitioner had been released from incarceration, the Third Department considered the case as an exception to the mootness doctrine:

… [W]hen applying the literal language of Penal Law § 60.04 (7) (a) and Correction Law § 865 (1), the most rational interpretation of the statutes is that, when the same sentencing judge imposes concurrent sentences on convictions for an eligible drug offense and another non-enumerated offense, the sentencing judge’s directive to enroll an eligible incarcerated individual into the shock incarceration program upon the conviction for the qualifying drug offense is binding on DOCCS, so long as the conviction on the additional non-drug offense is not one of the disqualifying offenses listed in Correction Law § 865 (1). Matter of Adams v Martuscello, 2026 NY Slip Op 04542, Third Dept 7-23-26

Practice Point: Absent a statutory exception, DOCCS must implement a sentencing judge’s order to enroll defendant in the shock probation program.

 

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HERE THE DISTRICT ATTORNEY BROUGHT A PETITION FOR A WRIT OF PROHIBITION TO PROHIBIT THE ENFORCEMENT OF AN ORDER PRECLUDING EVIDENCE BECAUSE THE PEOPLE’S PRODUCTION OF DISCOVERY WAS DEEMED UNTIMELY; A WRIT OF PROHIBITION DOES NOT LIE FOR THIS PURPOSE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Quirk, determined that the trial judge’s preclusion of evidence based upon the district attorney’s untimely production of discovery was not subject to the extraordinary remedy of prohibition. The petition for a writ of prohibition was brought by the then district attorney:

Granting prohibition here would constitute improper collateral interlocutory review. This point is underscored by the Legislature’s amendment of CPL 450.20 to permit the People to appeal as of right from the portion of an order dismissing an accusatory instrument or some of its counts pursuant to CPL 245.80(2). In enacting this amendment, the Legislature chose to limit the types of appeals available to the People and did not permit the People to appeal from orders granting other remedies or sanctions under CPL 245.80(2), including orders precluding evidence, regardless of whether such orders would prevent the People from prosecuting a case. Contrary to the petitioner’s contentions, although the nonappealability of an order may be considered as a factor in favor of prohibition as part of the second step of the two-tiered analysis, “nonreviewability by way of appeal alone, does not provide a basis for reviewing error by collateral proceeding in the nature . . . of prohibition”  … .

Since a writ of prohibition does not lie, the Supreme Court should have denied that branch of the petition which was to prohibit the enforcement of the order of preclusion.  Matter of Rocah v McCarthy, 2026 NY Slip Op 03967, Second Dept 6-24-26

Practice Point: A writ of prohibition does not lie to prohibit the enforcement of an order precluding evidence becasue the production of discovery by the People was deemed untimely.

 

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IN THESE TWO DISTINCT CASES, THE DEFENDANTS CHALLENGED THE CONSENT-TO-SEARCH CONDITION OF THEIR PROBATION; IN “BRAZEAL” THE COURT HELD THE CONDITION WAS NOT WARRANTED BY DEFENDANT’S CRIMINAL HISTORY; IN “LORA” THE COURT REFUSED TO CONSIDER THE ARGUMENT BECAUSE IT WAS NOT RAISED BEFORE THE SENTENCING COURT (CT APP).

​The Court of Appeals, reviewing two decisions, with multiple concurring and dissenting opinions, determined (1) in People v Brazeal the probation condition allowing searches by probation officers was deemed inappropriate given defendant’s criminal history, and (2) in People v Lora the defendant made the same challenge to the consent-to-search probation condition, but since the issue was not preserved, merits were not reached:

We conclude that the sentencing court abused its discretion in imposing the consent-to-search condition on Brazeal. Although his conviction was for a crime of violence, at no point was Brazeal shown to otherwise possess firearms or illegal weapons, and the knife used in his crime was an ordinary kitchen knife. The Appellate Division referenced his “history of violence” … , but that characterization overstates the defendant’s relatively remote criminal history. He had a previous conviction for property destruction in Las Vegas, a harassment conviction with “physical contact” in the Bronx, and a youthful offender adjudication for assault in Yonkers, the most recent of which was almost a decade before the present offense. The 2007 youthful offender adjudication is the only other incident that references the use of an unspecified “weapon/instrument,” and only the 2007 and 2009 proceedings included assault charges. None of Brazeal’s arrests in Georgia resulted in further prosecution apart from an outstanding warrant for failure to appear. Aside from these facts, the record reflects no basis for the imposition of the condition. Brazeal has not been assessed as being in need of alcohol or substance abuse treatment, the People concede that substance abuse is not implicated in his case, and his admission of occasional marijuana use in the past does not support further supervision. On this record, the sentencing court abused its discretion by imposing a condition that was not “individually tailored in relation to the offense[ ]” or to Brazeal’s “rehabilitation” … .

Because she did not object to the consent-to-search condition before the sentencing court, Lora’s statutory and constitutional challenges are unpreserved for our review … . People v Brazeal, 2026 NY Slip Op 03910, CtApp 6-23-26

Practice Point: To appeal a consent-to-search condition of probation (to the Court of Appeals), the issue must be preserved by raising it in the sentencing court.

 

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THE APPELLATE DIVISION ABUSED ITS DISCRETION IN DISMISSING TWO APPEALS FOR “FAILURE OF TIMELY PROSECUTION OR PERFECTION;” CRITERIA EXPLAINED (CT APP).

The Court of Appeals, without discussing the facts, determined the appellate division abused its discretion in dismissing two appeals for “failure of timely prosecution or perfection:”

We have identified as relevant factors (1) the length of the appellant’s delay; (2) the reasonableness of any excuse for the delay, including whether the appellant received clear instructions on how to pursue an appeal and whether the delay was strategic or resulted from a belated change in strategy; and (3) the specific prejudice, if any, the respondent has suffered from the delay (Perez, 23 NY3d at 99-101; Taveras, 10 NY3d at 233; People v West, 100 NY2d 23, 27-28 [2003]). Under the circumstances of these cases, including the People’s concession, the Appellate Division abused its discretion in dismissing defendants’ appeals. People v Matthews, 2026 NY Slip Op 03908, CtApp 6-18-26

Practice Point: Consult this decision for the criteria the appellate division should apply to the dismissal of an appeal for “failure of timely prosecution or perfection.”

 

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DEFENDANT HAD REQUESTED NEW COUNSEL AND ARGUED THE JUDGE DID NOT MAKE THE PROPER INQUIRY BEFORE DENYING THE REQUEST; DEFENDANT PLED GUILTY REPRESENTED BY HIS ORIGINAL COUNSEL; THE FOURTH DEPARTMENT RULED THE DEFENDANT “ABANDONED” HIS “INVOLUNTARY PLEA” ARGUMENT BY REMAINING REPRESENTED BY THE SAME ATTORNEY AT THE TIME OF THE PLEA; THE COURT OF APPEALS RULED DEFENDANT NEVER ABANDONED THE “INVOLUNTARY PLEA” ARGUMENT AND THE LINE OF FOURTH DEPARTMENT DECISIONS TO THE CONTRARY SHOULD NOT BE FOLLOWED (CT APP).

The Court of Appeals, reversing the Appellate Division and invalidating a line of Fourth Department decisions, determined the defendant did not waive the argument that his guilty plea was not voluntarily entered. Defendant had argued the trial judge did not make the required findings after defendant requested new counsel. The Fourth Department ruled that argument was abandoned because defendant pled guilty while represented by his original defense attorney. The Court of Appeals held the defendant had never waived the “involuntary plea” argument:

The Fourth Department’s holding, the most recent in a line of cases to the same effect, is wrong for several reasons. First, as the Appellate Division acknowledged, a claim challenging the voluntariness of a plea survives even a valid appeal waiver … . A challenge to voluntariness cannot be extinguished because the same counsel about whom a defendant has complained, unsuccessfully, continued to represent the defendant at plea and sentencing. Second, in any event, these circumstances do not constitute waiver of defendant’s voluntariness claim … . Waiver “occurs when a defendant intentionally and voluntarily relinquishes or abandons a known right that would otherwise survive a guilty plea” … . Here, the fact that defendant pleaded guilty while represented by the same attorneys does not evince an intentional choice to abandon review of the voluntariness of his plea. Defendant contends that his guilty plea was an effort to mitigate the harm resulting from the court’s denial of his request for new counsel, not an abandonment of his request. To the extent that the Appellate Division relied on the fact that, during the plea colloquy, defendant did not renew his complaints about counsel, his silence does not indicate waiver. Finally, the Fourth Department’s line of cases adopting this erroneous rule originates in People v Hobart (286 AD2d 916 [4th Dept 2001]), which cited no case law or authority for its rule, nor does it explain the rule’s origins. The other Departments have not adopted that rule. People v Kelley, 2026 NY Slip Op 03904, CtApp 6-18-26

Practice Point: Here defendant requested new counsel and the request was denied. Then defendant pled guilty while represented by his original counsel. Defendant did not waive his “involuntary plea” argument by pleading guilty with his original counsel. The line of Fourth Department decisions which held a guilty plea in this context abandons defendant’s “involuntary plea” argument is no longer valid. The abandonment or waiver of an “involuntary plea” argument must be explicit.

 

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A PLAINTIFF CAN USE THE SIX-MONTH “SAVINGS CLAUSE” IN CPLR 205(A) MORE THAN ONCE; WHEN THERE HAS BEEN AN APPEAL OF THE DISMISSAL OF THE COMPLAINT, THE SIX-MONTH PERIOD DOESN’T START TO RUN UNTIL 30 DAYS AFTER SERVICE OF THE APPELLATE DIVISION’S ORDER WITH NOTICE OF ENTRY (FIRST DEPT). ​

The First Department determined the dismissal of the complaint should have been “without prejudice” because plaintiff is entitled to use the six-month “savings clause” (CPLR 205(a)) more than once. The six-month period begins to run when when an appeal taken as of right is exhausted. Therefore the six-month period won’t start running until 30 days after the service of the First Department’s order with notice of entry:

The motion court properly determined that plaintiff did not have capacity to initiate this action because plaintiff has not yet obtained the necessary letters of administration. Dismissal of the action was therefore warranted. However, plaintiff is entitled to use the savings clause of CPLR 205(a) more than once … . Accordingly, we modify to make the dismissal without prejudice… .

Defendant’s contention that the grace period for plaintiff to bring a third action expired on December 3, 2025 (six months after the order appealed from was filed with notice of entry) is unavailing. “[A] prior action terminates for purposes of CPLR 205(a) when an appeal taken as of right is exhausted” … . Thus, “the six-month period for recommencing an action . . . begins to run once 30 days have elapsed following service of [our] order . . . with notice of entry” … . Lewis v TCPRNC, LLC, 2026 NY Slip Op 03635, First Dept 6-9-26

Practice Point: The six-month “savings clause” in CPR 205(a) can be used more than once.

Practice Point: Where, as here, there has been an appeal of the initial dismissal of the complaint, the CPLR 205(a) six-month period does not start to run until 30 days after the service of the appellate division’s order with notice of entry.

 

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THE ORAL COLLOQUY FOR THE WAIVER OF APPEAL WAS DEFECTIVE; THE DEFECT WAS NOT CURED BY THE WRITTEN WAIVER BECAUSE DEFENDANT WAS NOT ASKED WHETHER HE READ OR UNDERSTOOD IT BEFORE SIGNING; DEFENDANT DID NOT ADMIT TO HAVING AN INTENT TO COMMIT A CRIME WHEN HE ENTERED THE HOUSE, HE ADMITTED ONLY THE INTENT TO RETRIEVE HIS OWN PROPERTY; THE PLEA TO BURGLARY WAS VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s waiver of appeal was invalid and he did not admit to an essential element of burglary, the intent to commit a crime upon entering:

… [W]e agree with defendant that his waiver of the right to appeal is invalid. Supreme Court’s oral colloquy was overbroad inasmuch as the court told defendant that his waiver of the right to appeal marks the “end of the case.” Although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver “does not cure the deficient oral colloquy because the court did not inquire of defendant whether he understood the written waiver or whether he had read the waiver before signing it” … .

Defendant contends that his plea is invalid because the plea allocution negated an element of the crime to which he pleaded guilty. As defendant acknowledges, he never moved to withdraw his plea, nor did he ever seek to vacate the judgment of conviction. This case, however, falls within the rare exception to the preservation requirement … . Burglary in the first degree requires that a person knowingly enter or remain unlawfully in a dwelling with the “intent to commit a crime therein” (Penal Law § 140.30). Here, defendant twice indicated during his factual allocution that he did not intend to commit any crimes when he entered the house in question and, while he admitted that he intended to retrieve his own property, retrieving one’s own property does not establish larcenous intent … . Although the court attempted to conduct an inquiry following defendant’s insistence that he did not intend to commit any crimes when he entered the house, such inquiry was insufficient … . The court therefore erred in accepting defendant’s guilty plea … . People v Small, 2026 NY Slip Op 03560, Fourth Dept 6-5-26

Practice Point: Re: a waiver of appeal, a defect in the oral appeal-waiver colloquy with the judge is not cured by a written waiver unless the defendant is asked whether he read and understood the written waiver before signing it.

Practice Point: Entering a home with the intent to retrieve one’s own property is not “burglary” because the entry was not accompanied by an intent to commit a crime.

 

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