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THE DENIAL WITHOUT PREJUDICE OF A REQUEST TO APPLY FOR RESENTENCING PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) DOES NOT IMPLICATE THE MERITS OF RESENTENCING AND IS NOT APPEALABLE (THIRD DEPT).

The Third Department, over a detailed dissent, determined the dismissal-without-prejudice of the pro se defendant’s request for permission to apply for resentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) (CPL 440.47) was not appealable:

CPL 440.47 is a procedural vehicle that allows “presently incarcerated persons serving sentences of at least eight years . . . to apply for resentencing pursuant to the framework established in Penal Law § 60.12 (1)” … . CPL 440.47 (1) details the pre-application phase, which is step one of the resentencing process. At step one, the defendant must request permission to apply for resentencing in accordance with Penal Law § 60.12 and demonstrate his or her eligibility for same. To do so, there are two simple criteria: such person “[(1)] must include in his or her request documentation proving that she or he is confined in an institution operated by the [D]epartment of [C]orrections and [C]ommunity [S]upervision serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to [August 12, 2019] and [(2)] that she or he is serving such sentence for any offense eligible for an alternative sentence under section 60.12 of the [P]enal [L]aw” ,,, . If the court finds that the defendant satisfies these criteria, it must notify the defendant that he or she may submit an application for resentencing (see CPL 440.47 [1] [c]). After the court notifies the defendant, he or she can request the appointment of an attorney to assist with the next steps … . However, if the court finds that the defendant has not met the requirements to apply for resentencing, it must notify the defendant of same and dismiss the request without prejudice … . It is evident from the plain language contained herein that such dismissal cannot constitute “an order denying resentencing” (CPL 440.47 [3] [a]). Of note, step one, as far as we can tell, is completely unique to the DVSJA as it asks that a defendant request permission to make the CPL 440.47 … . To that end, at step one, the defendant is merely considered a “person” rather than an “applicant” and, as such, has not actually asked the court to grant resentencing … . By virtue of this simple distinction, it is apparent that the pre-application procedure does not implicate the merits of resentencing … .. People v Shawn A., 2026 NY Slip Op 05216, Third Dept 9-3-26

 

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ALTHOUGH SUPREME COURT DID NOT ABUSE ITS DISCRETION WHEN IT GRANTED THE PEOPLE’S MOTION TO PREVENT THE TRANSFER OF THE ADOLESCENT OFFENDER’S CASE TO FAMILY COURT, MITIGATING FACTS AND THE LEGISLATIVE PURPOSE UNDERLYING THE “RAISE THE AGE” LEGISLATION WARRANTED INVOCATION OF THE COURT’S “INTEREST OF JUSTICE” JURISDICTION AND DENIAL OF THE PEOPLE’S MOTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Chan, reversing Supreme Court, over a two-justice dissent, held that Supreme Court did not abuse its discretion when it granted the People’s motion to prevent the transfer of the adolescent offender’s case to Family Court. On the “no abuse of discretion” question, the majority and the dissenters agreed. The majority, however, went on to invoke its “interest of justice” jurisdiction, based on mitigating facts and the underlying purpose of the “Raise the Age (RTA)” legislation, to deny the People’s motion and allow the transfer to Family Court:

… [D]efendant, then 17 years old, chased a young woman across a basketball court, grabbed her from the back while placing his arm around her neck, and eventually brought her to the ground….  As a result, the young woman suffered minor injuries. At no point, including at the time of his arrest, did defendant take out, display, use, or fire [the] gun [found in his fanny pack]. Nor did he otherwise threaten to do so. * * *

Under the RTA, prosecutions of adolescent offenders — defined as 16 or 17 year olds charged with a felony — are presumptively removable from the Youth Part of Supreme Court to Family Court (see CPL 722.10[1]; CPL 722.23[1], [2] …). The People can rebut that presumption if a defendant is charged with a class A nondrug felony or a violent felony, and the People prove, “by a preponderance of the evidence,” that defendant (1) “caused significant physical injury” during the commission of the offense, (2) “displayed a firearm, shotgun, rifle or deadly weapon” in “furtherance of” the offense, or (3) committed a sex offense (see CPL 722.23[2][c] …). “Otherwise, the case is removed to Family Court unless, upon a motion by the People, the [Y]outh [P]art determines that ‘extraordinary circumstances exist that should prevent the transfer of the action to’ Family Court” … . * * *

… [D]efendant shouldered caretaker responsibilities for his family, including assisting his mother during a difficult pregnancy and being a source of mentorship and support for his younger siblings. He participated avidly in sports teams and lessons. His maturity was importantly manifested by his demonstrated amenability to Family Court’s services. For example, defendant highlighted his improved school performance during the COVID-19 pandemic, his interest in pursuing vocational studies, and his successful graduation from the Exalt Youth program with perfect attendance and outstanding participation. …

In our view, these are precisely the types of facts that the legislators contemplated would support removal to Family Court … . People v Key, 2026 NY Slip Op 05234, First Dept 9-3-26

Practice Point: Consult this opinion for an in depth discussion of the purpose and implementation of the “Raise the Age” legislation which allows the transfer of adolescent offenders’ felony prosecutions to Family Court.

Practice Point: Here the majority and the dissenters agreed Supreme Court did not abuse its discretion when it granted the People’s motion to deny the transfer of the adolescent’s case to Family Court, but the majority went on to invoke its “interest of justice” jurisdiction to reverse, something the Court of Appeals would not have the power to do.

 

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THE RPAPL 1304 NOTICE REQUIREMENTS WERE CHANGED BETWEEN THE TIME THE NOTICE WAS SENT TO THE DEFENDANTS AND WHEN THE FORECLOSURE PROCEEDINGS WERE BROUGHT; THEREFORE THE RPAPL 1304 NOTICE WAS DEFECTIVE (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff’s motion for summary judgment should not have been granted. The RPAPL 1304 notice requirements were changed between the time the notice was sent to defendants and when foreclosure action was commenced. Therefore the RPAPL 1304 notice, a condition precedent to any foreclosure action, was invalid:

Here, the plaintiff’s RPAPL 1304 notice, dated July 15, 2016, contained the statutory language that was in effect at the time of the notice. However, RPAPL 1304 was amended effective December 20, 2016, and the amendment changed the language that the statute required the notice to contain … . Thus, the plaintiff’s July 15, 2016 RPAPL 1304 notice did not satisfy the condition precedent to litigation for this action commenced in August 2017, after the effective date of the amendment … . Although this issue is raised for the first time on appeal, it may be reached as it involves a pure question of law that appears on the face of the record and could not have been avoided if brought to the court’s attention at the proper juncture … . Wilmington Sav. Fund Socy., FSB v Fischman, 2026 NY Slip Op 05212, Second Dept 9-2-26

Practice Point: The RPAPL 1304 foreclosure notice provisions were changed by amendment between the time the notice was sent to defendants and the action was brought, rendering the notice defective. The issue was properly raised for the first time on appeal.​

 

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THE JURY VERDICT IN THIS REAR-END COLLISION TRIAL WAS IRREVOCABLY INCONSISTENT AND SHOULD HAVE BEEN SET ASIDE; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the jury verdict in this rear-end collision case was “irrevocably inconsistent” and must be set aside. The only nonnegligent explanation offered by the defendant was that he suffered a medical emergency just before the collision. On the verdict form the jury answered “no” to the question whether defendant suffered a medical emergency. But the jury also answered “no” to the question whether defendant was negligent in the operation the vehicle:

Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and for a new trial. “Where, as here, the jury verdict ‘is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence'” … . Although the plaintiff did not object to the jury verdict as inconsistent prior to the discharge of the jury, thus failing to preserve an issue of law … “‘there is no preservation requirement for weight of the evidence review'” … .

Here, since the only nonnegligent explanation for the accident provided by the defendants was an alleged sudden medical emergency, it was irreconcilably inconsistent for the jury to answer “No” when asked whether the decedent “experience[d] a sudden, unforeseen medical emergency such as a seizure prior to the accident … , and was his operation of the vehicle reasonable under the circumstances,” while also responding “No” when asked whether the decedent was “negligent in the operation of the vehicle.” Accordingly, there must be a new trial on the issue of liability. Pitt v Rosenblatt, 2026 NY Slip Op 05200, Second Dept 9-2-26

​Practice Point: Here the “irrevocably inconsistent” jury verdict was against the weight of the evidence and should have been set aside. The issue need not be preserved for appeal.

 

ALTHOUGH CPLR 8301(A)(6) REFERS TO “REASONABLE EXPENSES OF PRINTING THE PAPERS” FOR AN APPEAL, THE STATUTE IS INTERPRETED TO INCLUDE THE EXPENSES FOR PREPARATION OF A DIGITAL RECORD AND BRIEFS; A PARTY TO WHOM COSTS ARE AWARDED ON APPEAL CAN RECOVER THE COSTS OF CREATING THE DIGITAL RECORD AND BRIEFS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Wan, determined the party to whom costs are awarded on appeal are entitled pursuant to CPLR 8301(a)(6) to expenses for assembly and submission of a digital record and briefs on appeal. The statute refers to “reasonable expenses of printing the paper” which the court interpreted to include the preparation of a digital record and briefs:

… [W]e hold that the plaintiff’s use of an appellate printer to prepare “electronic bookmarks,” “electronic links,” “digital file conversion(s),” and “uploads” for its prior appeal constituted “reasonable expenses of printing the papers for a hearing, when required,” within the meaning of CPLR 8301(a)(6) and was “reasonable and necessary within the context of the litigation” … . Underhill Venture, LLC v Sarang, 2026 NY Slip Op 04976, Second Dept 8-12-26

 

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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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