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FOR THE FIRST TIME IN NEW YORK, COUNSEL WAS SANCTIONED IN THE AMOUNT OF $5000 FOR SUBMITTING AI-GENERATED BRIEFS CITING 23 “FAKE” DECISIONS; IN ADDITION, COUNSEL AND HIS CLIENT WERE EACH SANCTIONED IN THE AMOUNT OF $2500 FOR FILING A FRIVOLOUS APPEAL (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Fisher, in a matter of first impression, determined (1) counsel for the defendant in this foreclosure action should be sanctioned for submitting appellate briefs generated by AI which cited 23 “fake” appellate decisions, and (2) counsel for the defendant and the defendant should be sanctioned for filing a frivolous appeal: Defendant’s counsel was sanctioned in the amount of $5000 for the AI generated briefs and $2500 for the frivolous appeal. Defendant was sanctioned in the amount of $2500 for the frivolous appeal:

… [R]ecognizing this as the first appellate-level case in New York addressing sanctions for the misuse of GenAI, we find the imposition of a monetary sanction on defense counsel Joshua A. Douglass in the amount of $5,000 to be appropriate under the circumstances, with the further goal of deterring future frivolous conduct by defendant and the bar at large … . To be clear, attorneys and litigants are not prohibited from using GenAI to assist with the preparation of court submissions. The issue arises when attorneys and staff are not sufficiently trained on the dangers of such technology, and instead erroneously rely on it without human oversight. As with the work from a paralegal, intern or another attorney, the use of GenAI in no way abrogates an attorney’s or litigant’s obligation to fact check and cite check every document filed with a court. To do otherwise may be sanctionable, depending on the facts and particular circumstances of each case. * * *

Although defense counsel signed the papers filed with this Court …, it is … not unnoticed that the metadata of numerous documents indicate they originated from a program in his client’s name. Such result would be consistent with defendant filing papers pro se before Supreme Court, and defense counsel’s apparent unfamiliarity during oral argument with certain papers he allegedly filed during the pendency of this appeal. Given the baseless nature of this appeal, and recognizing that sanctions must be goal oriented to deter future conduct to prevent the waste of judicial resources and continued vexatious litigation of specific individuals too … , we conclude that an additional sanction of $2,500 shall be imposed on defense counsel … and $2,500 shall be imposed on defendant … for pursing this appeal. Deutsche Bank Natl. Trust Co. v LeTennier, 2026 NY Slip Op 00040, Third Dept 1-8-25

Practice Point: For the first time in New York an attorney was sanctioned for submitting AI-generated briefs which cited “fake” decisions.

Practice Point: Here both counsel and his client were sanctioned for filing a frivolous appeal. It was clear that the client played a role in creating the AI-generated briefs.

 

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THE PROBATION CONDITION PROHIBITING ASSOCIATION WITH GANGS WAS STRICKEN BECAUSE THE CONDITION WAS NOT RELEVANT TO THE UNDERLYING OFFENSE OR DEFENDANT’S REHABILITATION; THE ISSUE SURVIVES A WAIVER OF APPEAL AND A LACK OF PRESERVATION (FIRST DEPT).

The First Department, striking a probation condition, determined the condition prohibiting defendant’s association with gangs was not related to defendant’s rehabilitation: The First Department noted that the issue survives a waiver of appeal and a lack of preservation:

Defendant’s appeal waiver does not foreclose her challenges to the legality of the conditions of her probation under Penal Law § 65.10(1) and do not require preservation … . …

… [T]he probation condition requiring defendant to “[r]efrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang if directed by the Department of Probation” must be stricken because there is no evidence that defendant’s actions were connected to gang activity or that she had a history of gang membership, rendering this condition neither reasonably related to her rehabilitation nor necessary to ensure that she leads a law-abiding life ( … Penal Law § 65.10[1]). People v Johnson, 2026 NY Slip Op 00029, First Dept 1-6-25

Practice Point: The appellate courts are striking probation conditions not shown to be relevant to the underlying offense or criminal history.

Same issue and result in People v Seymore, 2026 NY Slip Op 00028, First Dept 1-6-25

 

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THE PEOPLE AGREED DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WARRANTED A SUPPRESSION HEARING BUT ARGUED THE ISSUE WAS NOT PRESERVED BECAUSE THE ORDER DENYING A SUPPRESSION HEARING INCLUDED THE PHRASE “WITH LEAVE TO RENEW UPON A SHOWING OF SUFFICIENT FACTUAL ALLEGATIONS” RENDERING THE ORDER NONFINAL AND UNAPPEALABLE; THE FIRST DEPARTMENT NOTED THAT NO OTHER EVIDENCE CAME TO LIGHT WHICH COULD HAVE SUPPORTED A RENEWAL MOTION; THE ORDER WAS THEREFORE DEEMED FINAL AND APPEALABLE (FIRST DEPT).

The First Department, holding defendant’s plea and sentencing in abeyance, remitted the matter for a Mapp/Dunaway hearing to determine whether the seizure of a gun dropped by the defendant was facilitated by unlawful police conduct. In the omnibus motions defendant argued that he dropped the gun as a spontaneous response to the police officers’ approaching and then chasing him without reasonable suspicion. On appeal, the People agreed defendant was entitled to a hearing. The contested issue on appeal was whether the order denying the suppression motion “with leave to renew upon a showing of sufficient factual allegations” rendered the order nonfinal and therefore unappealable. The First Department determined the order was final:

The issue in contention on this appeal is whether the court’s summary denial of defendant’s suppression motion — which ended with the statement that the motion “is denied, with leave to renew upon a showing of sufficient factual allegations” — qualifies as an “order finally denying a motion to suppress evidence” which would preserve the suppression issue for appeal under CPL 710.70(2). While phrases like “leave to renew” or “leave to submit” may be some indicia of a lack of finality under CPL 710.70(2), they do not, standing alone, render a court’s ruling nonfinal. * * *

… [T]he court incorrectly rejected the defendant’s detailed recitation of his suppression theory and there was no further evidence produced by the People that could bolster defendant’s theory on renewal.

Accordingly, we remit to Supreme Court to hold a Mapp/Dunaway hearing. People v Diaby, 2025 NY Slip Op 07343, First Dept 12-30-25

Practice Point: Here the People argued that the order denying a suppression hearing was nonfinal and therefore unappealable because it included the phrase “with leave to renew upon a showing of sufficient factual allegations.” The First Department noted that this was not a case where additional evidence came to light which would have supported renewal and the defendant failed to make a renewal motion. Here no new evidence came to light. The denial of the suppression motion was therefore deemed a final, appealable order.

 

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THE FACT THAT THE ARBITRATOR MADE ERRORS OF LAW DID NOT AFFECT THE VALIDITY OF THE AWARD BECAUSE THERE WAS A RATIONAL BASIS FOR THE RULING; ARBITRATION AWARDS ARE LARGELY UNREVIEWABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the fact that the arbitrator in this no-fault insurance dispute made errors of law does not negate the validity of the arbitrator’s ruling. As long as the arbitrator’s award has a rational basis it is largely unreviewable:

“[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” … . “A court reviewing the award [*2]of a master arbitrator is limited to the grounds set forth in CPLR article 75” … . Significantly, a master arbitrator’s determination is not subject to vacatur by the courts on the basis of an error of law, including, “‘the incorrect application of a rule of substantive law,'” unless the master arbitrator’s determination is irrational … .

Here, regardless of any errors of law the arbitrator and master arbitrator made regarding burdens of proof, the master arbitrator’s determination to affirm the … award to the provider was rationally based on the conclusion that [the] minor delay in providing the insurer with notice of the accident was reasonably justified because [the injured party] was a passenger in the vehicle involved in the accident and, thus, was not making a claim to her own insurance company (see 11 NYCRR 65-3.5[l]). Because the master arbitrator’s affirmance of the … award had a rational basis, and “‘[i]t is not for the court to decide whether the master arbitrator erred in applying the applicable law,'” the petition to vacate the master arbitrator’s award should have been denied and the master arbitrator’s award confirmed … . Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C., 2025 NY Slip Op 07297, Second Dept 12-24-25

Practice Point: Arbitration awards are largely unreviewable by the courts. Errors of law are ignored if there is a rational basis for the ruling.

 

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ALTHOUGH THE 16-YEAR-OLD DEFENDANT IN THIS MURDER CASE WAS LIABLE AS AN ACCOMPLICE, ACCOMPLICE-LIABILITY STANDING ALONE DOES NOT PRECLUDE REMOVAL TO FAMILY COURT; A GUILTY PLEA DOES NOT FORFEIT AN APPELLATE CHALLENGE TO THE DENIAL OF REMOVAL; THE WAIVER OF APPEAL WAS INVALID BECAUSE IT PURPORTED TO FORECLOSE ALL APPELLATE CHALLENGES (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, over a two-justice dissent, determined (1) defendant’s waiver of appeal was invalid because it purported to foreclose all appellate challenges; and (2) the statutory procedure for removing the 16-year-old defendant’s prosecution to Family Court was violated. The fact that defendant was charged as an accomplice in this carjacking/murder case did not disqualify the defendant from the removal procedure. Once the removal procedure is started, the People have 30 days to demonstrate removal is not appropriate. The majority disagreed with the dissent’s argument that the “removal-to-Family-Court-issue” was forfeited by defendant’s guilty plea:

Defendant orally waived his right to appeal and executed a written waiver thereof. The language in the written waiver, however, is “inaccurate and misleading insofar as it purports to impose ‘an absolute bar to the taking of a direct appeal’ and to deprive defendant of his ‘attendant rights to counsel and poor person relief, [as well as] all postconviction relief separate from the direct appeal’ ” … . * * *

Defendant contends that the court erred in concluding that the People established by a preponderance of the evidence that defendant “caused significant physical injury to a person other than a participant in the offense” (CPL 722.23 [2] [c] [i]) and that defendant was therefore disqualified from having the matter transferred to Family Court. Initially, we respectfully disagree with our dissenting colleagues that defendant’s contention is forfeited by his guilty plea. It is undisputed that a guilty plea does not “extinguish every claim on appeal” and that the issues that are not forfeited by the plea generally “relate either to jurisdictional matters . . . or to rights of a constitutional dimension that go to the very heart of the process” … . * * *

The plain language of CPL 722.23 (2) (c) supports the conclusion that the Legislature did not intend for the circumstances disqualifying an adolescent offender from removal to Family Court to be coextensive with criminal liability, including principles of accessorial liability, for a statutorily designated violent crime. Indeed, such a result could have been achieved by disqualifying adolescent offenders based solely on the crime charged without reference to any further factors. People v Jacobs, 2025 NY Slip Op 07124, Fourth Dept 12-23-25

Practice Point: Here the 16-year-old defendant should not have been denied removal to Family Court solely based on accomplice liability for murder. The right to challenge the denial of removal was not forfeited by defendant’s guilty plea. The waiver of appeal was invalid because it purported to foreclose all appellate challenges.

 

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REMITTAL IS NECESSARY BECAUSE THE SORA RISK-LEVEL-ASSESSEMENT WAS NOT SUPPORTED IN THE RECORD BY FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY THE CORRECTION LAW; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THAT AN AVAILABLE GROUND FOR A DOWNWARD DEPARTURE WAS NOT RAISED (THIRD DEPT).

The Third Department, reversing County Court, determined (1) appellate review of the SORA risk-level assessment was precluded by the judge’s failure to place on the record its findings of fact and conclusions of law as required by the Correction Law, and (2) defendant did not receive effective assistance of counsel in that there was a ground for a downward departure which was not raised. Defendant was assessed 30 points based on a prior conviction for endangering the welfare of a child. However there was no sexual offense involved in that conviction and a downward departure was therefore possible:

“The failure to include the necessary findings prevents this Court from conducting a meaningful appellate review of defendant’s designation as a risk level two sex offender and would, alone, require remittal for County Court to comply with the statute” (… see Correction Law § 168-n [3] …). * * *

… County Court was required to assess 30 points under risk factor 9 based upon defendant’s undisputed prior conviction of endangering the welfare of a child, “without regard to whether the underlying offense involved conduct that is sexual in nature” … . This is because “[t]he Board decided to treat endangering the welfare of a child as if it were a sex crime because it generally involves sexual misconduct, especially when it is part of a plea bargained disposition” … . However, the risk assessment guidelines also provide that, “[w]here a review of the record indicates that there was no such [sexual] misconduct, a departure may be warranted” … . People v Pribble, 2025 NY Slip Op 06936, Third Dept 12-11-25

Practice Point: If a SORA risk-level-assessment is not supported by findings of fact and conclusions of law in the record appellate review is not possible and remittal is required.

Practice Point: If, as here, there is an available ground for a downward departure which is not raised, the defendant did not receive effective assistance of counsel.

 

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TAKING THE APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE FIRST DEPARTMENT DETERMINED THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DID NOT DEMONSTRATE THE APPPELLANT JUVENILE WAS PROPERLY TRANSFERRED FROM A NONSECURE TO A SECURE FACILITY; THE JUVENILE’S MISBEHAVIOR WAS NOT THAT SERIOUS; ACS DID NOT DEMONSTRATE IT HAD EXHAUSTED LESS SEVERE ALTERNATIVES (FIRST DEPT).

The First Department, reversing Family Court, considering an otherwise moot appeal because the issue recurs and juveniles are only placed for a limited amount of time, determined the Administration for Children’s Services (ACS) did not demonstrate the need to place the appellant (juvenile) in a secure facility:

Under Family Court Act § 355.1(2), Family Court can modify a dispositional order “upon a showing of a substantial change of circumstances” by the agency, to place a youth in a secure facility, if “the respondent has demonstrated by a pattern of behavior that he or she needs a more structured setting and the social services district has considered the appropriateness and availability of a transfer to an alternative non-secure or limited secure facility” … . Notably, behaviors meriting a modification include “disruptions in facility programs; continuously and maliciously destroying property; or, repeatedly committing or inciting other youth to commit assaultive or destructive acts” … .

Here, ACS alleged that two incidents where appellant went absent without consent (AWOC) over the course of two months constituted a “pattern of behavior” warranting his placement in a secure facility. The record reflects that, during the first AWOC incident …, appellant “darted out the front door and ran” from a non-secure facility. During the second incident …, appellant fled through a damaged door at a limited secure facility after other youths broke the door while trying to escape. While this behavior is problematic, it simply does not rise to the level of seriousness reflected in the examples provided in the statute, i.e. “continuously and maliciously destroying property” or “repeatedly committing or inciting other youth to commit assaultive or destructive acts” … .

ACS also failed to show that it first “considered the appropriateness and availability of a transfer to an alternative non-secure or limited secure facility” before seeking modification as it was required to do … . According to ACS policies, “[m]odifications must be considered as an option only when all efforts to avoid the modification have been exhausted.” … ACS did not present any affirmations or provide any witness testimony regarding the limited secure facility’s ability to address appellant’s behavior … . Matter of J.D., 2025 NY Slip Op 06807, First Dept 12-9-25

Practice Point: Consult this decision for insight into the level of a juvenile’s misbehavior which will justify placement in a secure facility, as well as the less severe alternatives which must be tried or demonstrated ineffective first.

 

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THE TRIAL JUDGE DID NOT ENSURE THAT DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL WAS KNOWING AND INTELLIGENT, CRITERIA EXPLAINED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge did not ensure the pro se defendant was aware of the risks of representing himself or the benefits of having an attorney:

… [T]he court failed to conduct the requisite inquiry before allowing the defendant to proceed pro se and the record does not reveal that the defendant was aware of the disadvantages of representing himself or the benefits of having an attorney … . A court must determine that the defendant’s waiver of the right to counsel is made competently, intelligently, and voluntarily before allowing that defendant to represent himself or herself … . To make that evaluation, the court “must undertake a ‘searching inquiry’ designed to ‘insur[e] that a defendant [is] aware of the dangers and disadvantages of proceeding without counsel'” … . The court’s inquiry “must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” … .

Here, the record does not demonstrate that the Supreme Court inquired about the defendant’s pedigree information, aside from the fact that he did not have a law license, or that the court ascertained whether the defendant was aware of the risks inherent in proceeding without a trial attorney and the benefits of having counsel represent him at trial … . The court failed to ensure that the defendant understood the potential sentence that could be imposed or the dangers and disadvantages of self-representation … . The court neither “tested defendant’s understanding of choosing self-representation nor provided a reliable basis for appellate review” … . In addition, the defendant continually engaged in disruptive or obstreperous conduct … . Under these circumstances, the defendant’s purported waiver of his right to counsel was ineffective and the defendant is entitled to a new trial … . People v Hall, 2025 NY Slip Op 06727, Second Dept 12-3-25

Practice Point: Consult this decision for insight into how a judge, faced with a defendant who wishes to represent himself, should handle the “searching Inquiry” to ensure the defendant is aware of the risks.​

 

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THE PROBATION CONDITION REQUIRING DEFENDANT TO CONSENT TO SEARCHES FOR DRUGS AND WEAPONS WAS NOT REASONABLY RELATED TO HIS REHABILITATION FOR DISORDERLY CONDUCT; THE APPEAL WAIVER WAS INVALID (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was not valid and went on to find that the probation condition requiring defendant to consent to “search of his person, vehicle, and place of abode, and the seizure of any illegal drugs, drug paraphernalia, gun/firearm, or other weapon or contraband” was not reasonably related to his rehabilitation for disorderly conduct:

… [The record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The Supreme Court’s oral explanation of the appeal waiver and its consequences was unclear and incomplete, and the written waiver cannot be relied upon to cure the deficiency because “the court did not ascertain on the record whether the defendant had read the written waiver, discussed it with his attorney, or was aware of its contents” … .

… [T]he conditions of probation “shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him [or her] to do so” (Penal Law § 65.10[1]). In addition to specific conditions enumerated in the statute, the court may, in its discretion, impose “any other conditions reasonably related to [the defendant’s] rehabilitation” … and “any other reasonable condition as the court shall determine to be necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant” … . Therefore, sentencing courts may require a defendant to consent to searches by his or her probation officer for weapons, illegal drugs, or other contraband so long as the condition is “individually tailored in relation to the offense” and “the defendant’s particular circumstances, including his or her background, history, and proclivities” … .

Here, the defendant’s only prior conviction was for disorderly conduct, a violation … , the offense at issue did not involve the use of a weapon or alcohol or other substances, and the defendant was not under the influence of any substances at the time of the offense. … [T]he Supreme Court improvidently exercised its discretion in imposing Condition No. 28, as that condition “was not individually tailored in relation to the offense, and was not, therefore, reasonably related to the defendant’s rehabilitation, or necessary to ensure that the defendant will lead a law-abiding life” … . People v Gibson, 2025 NY Slip Op 06724, Second Dept 12-3-25

Practice Point: Here the defendant was convicted of disorderly conduct which did not involve a weapon or drugs. The probation condition requiring defendant to submit to searches for drugs or weapons was struck.

 

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DEFENDANT’S FACIAL CONSTITUTIONAL CHALLENGE TO THE CONCEALED CARRY STATUTE AS IT EXISTED AT THE TIME OF HIS INDICTMENT (A PROVISION OF THE STATUTE WAS DECLARED UNCONSTITUTIONAL BY THE US SUPREME COURT JUST PRIOR TO DEFENDANT’S INDICTMENT) SURVIVED HIS WAIVER OF APPEAL; ALTHOUGH DEFENDANT NEVER APPLIED FOR A FIREMARM LICENSE, HE HAS STANDING TO CHALLENGE THE STATUTE BASED ON HIS CONVICTION FOR ATTEMPTED POSSESSION OF A WEAPON; THE CHALLENGED PORTION OF THE STATUTE IS SEVERABLE FROM THE OTHER PROVISIONS; DEFENDANT WAS UNABLE TO DEMONSTRATE THE UNCONSTITUTIONAL PROVISION RENDERED THE STATUTE UNCONSTITUTIONAL UNDER ALL CONCEIVABLE CIRCUMSTANCES AND THEREFORE DID NOT DEMONSTRATE FACIAL UNCONSTITUTIONALITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a three-judge concurrence, determined: (1) the defendant’s challenge to the facial constitutionality of the state’s firearm licensing scheme survived his waiver of appeal; (2) the defendant, who was convicted of attempted criminal possession of a weapon, has standing to challenge the state’s firearm licensing scheme as it was codified at the time of his indictment; (3) although one of the requirements for licensure in the relevant statute (Penal Law 400.00(2)(f) was declared unconstitutional by the US Supreme Court just before defendant’s indictment, that requirement is severable and did not render the entire statutory scheme unconstitutional. In 2022 the US Supreme Court, in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1, found unconstitutional the statute’s “proper cause” language, which required an individual seeking a concealed-carry license for a pistol or revolver to “demonstrate a special need for self-protection distinguishable from that of the general community,” Although since removed, the “proper cause” language remained in the statute at the time of defendant’s indictment:

We hold that a facial constitutional challenge such as the one presented here likewise falls into the narrow class of non-waivable appellate claims. Hornbook law underscores the very high bar for this type of challenge: a litigant must contend that “in any degree and in every conceivable application, the law suffers wholesale constitutional impairment” … . In the rare circumstances where a facial challenge is successful, “the law is invalid in toto—and therefore incapable of any valid application” … , and thus the State will lack authority to prosecute or punish the defendant or anyone else for the conduct at issue. … [A]facial challenge goes squarely to the “fairness in the process itself” … , and transcends an individual defendant’s concerns to implicate “a larger societal interest in its correct resolution” …  . Accordingly, a waiver that precludes appellate review of a facial constitutional challenge to a criminal statute should not be enforced. * * *

Both the People and the Attorney General argue that the defendant lacks standing to challenge the constitutionality of the licensing scheme because he never applied for a firearm license. We disagree. * * *

We find the “proper cause” requirement severable. The text and structure of the licensing scheme evince a clear legislative intent to regulate the lawful purchase, possession, and use of firearms. The licensing scheme is detailed and multi-faceted; the “proper cause” provision was just one aspect of a much broader scheme that includes a variety of distinct requirements. People v Johnson, 2025 NY Slip Op 06528, Ct App 11-24-25

Practice Point: Consult this decision for insight into when a challenge to the constitutionality of a statute will survive a waiver of appeal, when a defendant has standing to challenge the constitutionality of a criminal statute, when a portion of a challenged statute will be deemed severable from the other provisions, and whether an unconstitutional statutory provision renders the entire statute unconstitutional in every conceivable circumstance (a requirement for facial unconstitutionality).

 

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