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MOTHER’S APPEALS FROM EXPIRED PERMANENCY HEARING ORDERS (RE: CHILDREN’S PLACEMENT IN FOSTER CARE) WERE PROPERLY DISMISSED AS MOOT, TWO COMPREHENSIVE DISSENTING OPINIONS (THREE DISSENTING JUDGES) (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two comprehensive dissenting opinions (three judges), determined the Appellate Division had properly dismissed mother’s appeals of expired permanency hearing orders (re: children’s placement in foster care) as moot, and properly declined to hear the appeals under an exception to the mootness doctrine:

Generally, ” ‘an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment’ ” … . Here, the Appellate Division properly determined that the mother’s appeals are moot. At the time the Appellate Division entered its decisions, both permanency hearing orders were “superseded by subsequent permanency hearing orders, which continued the child’s placement in foster care” … . * * *

… [T]he Appellate Division did not abuse its discretion in determining that the issues raised below were “not sufficiently substantial or novel to warrant an exercise of [its] exceptional discretion to retain the appeal despite mootness” … . Matter of Joshua J. (Tameka J.), 2025 NY Slip Op 03010, CtApp 5-20-25

Practice Point: Consult this opinion for concise explanations of the appellate mootness doctrine and the application of an exception to the mootness doctrine.

 

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THE JUDGMENT OF FORECLOSURE AND SALE WAS REVERSED ON APPEAL; THE DEFENDANT IN THE FORECLOSURE ACTION DID NOT SEEK A STAY PENDING APPEAL; THE FACT THAT THE NOTICE OF PENDENCY, FILED BY THE BANK AT THE OUTSET OF THE FORECLOSURE PROCEEDINGS, WAS STILL IN EFFECT AT THE TIME OF THE FORECLOSURE SALE DID NOT AFFECT THE TRANSFER OF TITLE TO A GOOD FAITH PURCHASER AT THE FORECLOSURE SALE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined the defendant in the foreclosure action, Yesmin, upon reversal of the judgment of foreclosure and sale on appeal, was not entitled to cancel and discharge the referee’s deed transferring title to a good faith purchaser of the foreclosed property. It is significant here that the defendant in the foreclosure action did not seek a stay pending appeal. The notice of pendency, filed by the bank in the foreclosure action, which was still in effect at the time of the foreclosure sale, did not affect the title acquired by the good faith purchaser:

This appeal raises the question of what effect an extant notice of pendency has on the title to real property acquired by a third party from a judicial foreclosure sale when the judgment of foreclosure and sale is reversed on the appeal of a defendant to the foreclosure action. For the reasons that follow, we hold that a notice of pendency that was unexpired at the time of the foreclosure sale has no effect on the title acquired by a good faith purchaser for value from a sale conducted pursuant to the judgment of foreclosure and sale. * * *

Once a judgment is entered, the need to obtain a stay pending appeal in order to protect the right to restitution of the property is shared equally by a defendant or a plaintiff against whom the judgment is entered. Where a judgment has been entered against a plaintiff, “the plaintiff’s right to impair the marketability of the property during the pendency of an appeal [is conditioned] upon the issuance of a discretionary CPLR 5519(c) stay” … . Thus, regardless of whether the judgment is issued in favor of a defendant or the plaintiff, once a judgment is entered, a stay is necessary to protect the property, and in the absence of a stay, the winning party is free to transfer the property as it sees fit. * * *

Since [the good faith purchaser of the foreclosed property] established that it is “a purchaser in good faith and for value” whose title would be affected by restitution of Yesmin’s property rights lost by the judgment of foreclosure and sale, Yesmin may not seek restitution by canceling the referee’s deed and, instead, is limited to monetary relief against the plaintiff to the foreclosure action (CPLR 5523 …). Yesmin v Aliobaba, LLC, 2025 NY Slip Op 02964, Second Dept 5-14-25

Practice Point: If the defendant in a foreclosure action which is appealed does not seek a stay pending appeal, the reversal on appeal does not affect title transferred to a good faith purchaser at the foreclosure sale.

 

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DEFENDANT’S STEPMOTHER COULD NOT CONSENT TO THE SEARCH OF DEFENDANT’S BACKPACK, WHICH WAS IN THE STEPMOTHER’S APARTMENT, BECAUSE THE POLICE KNEW THE BACKPACK BELONGED TO DEFENDANT; AN APPELLATE COURT DOES NOT HAVE JURISDICTION TO AFFIRM A LOWER COURT RULING ON A GROUND NOT RULED ON BY THE LOWER COURT (FIRST DEPT).

The First Department, reversing Supreme Court and dismissing the indictment, determined defendant’s motion to suppress a firearm seized from a backpack should have been granted. The police knew the backpack, which was in his stepmother’s apartment, belonged to the defendant. Therefore defendant’s stepmother could not consent to the search. That First Department noted that the arguments raised by the People for the first time on appeal (defendant had abandoned the backpack and the emergency exception to the warrant requirement applied) could not be considered because the lower court did not rule on them (a prerequisite for appellate jurisdiction):

Supreme Court incorrectly denied defendant’s motion to suppress physical evidence recovered from defendant’s bag based on his stepmother’s consent to search her apartment … . The testimony at the hearing was explicit that the officer conducting the search knew that the bag belonged to defendant and not defendant’s stepmother before he picked it up and felt what he believed to be a firearm inside. Therefore, she did not “possess[] common authority over . . . [the] effects sought to be inspected”—here, defendant’s backpack—and could not consent to a search of it … .

While the People argue, in the alternative, that defendant was trespassing and abandoned the bag when he left it in the apartment to surrender himself to the police, they did not advance this argument before the suppression court, and they are foreclosed from doing so now … . The same is true of their argument that search of the bag was permissible under the emergency exception to the warrant requirement … . Furthermore, the hearing court did not rule on these issues in denying suppression, “and therefore did not rule adversely against defendant on this point” … . Thus, this Court “lacks jurisdiction to affirm the denial of defendant’s motion to suppress” the firearm on this alternative ground … . People v Gonzalez, 2025 NY Slip Op 02883, First Dept 5-13-25

Practice Point: Here defendant’s backpack was in defendant’s stepmother’s apartment. The police knew the backpack belonged to defendant. Therefore defendant’s stepmother could not consent to the search of the back pack.​

Practice Point: Here the People sought to affirm the lower court’s denial of the suppression motion on grounds which where not raised or ruled upon by the motion court. The appellate court does not have jurisdiction to affirm on a ground not ruled upon by the lower court.

 

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DEFENDANT WAS ENTITLED TO THE ASSIGNMENT OF NEW COUNSEL BASED UPON COUNSEL’S REMARK THAT DEFENDANT’S REQUEST TO WITHDRAW HIS PLEA WAS UNWARRANTED; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY ABOUT DEFENDANT’S REQUEST FOR SUBSTITUTE COUNSEL AND HIS REQUEST TO WITHDRAW HIS PLEA; MATTER REMITTED FOR ASSIGNMENT OF NEW COUNSEL AND A SUFFICIENT INQUIRY BY THE JUDGE (THIRD DEPT).

The Third Department, over a dissent, determined defendant’s appeal waiver was invalid, defendant demonstrated a conflict of interest on assigned counsel’s part, and the judge did not conduct a proper inquiry about defendant’s requests for new counsel and to withdraw his guilty plea. The Third Department vacated defendant’s sentence, not the conviction or plea, and remitted the matter for the assignment of new counsel and an inquiry about defendant’s request for substitute counsel and his request to withdraw his plea:

At sentencing, the Conflict Defender explained that she had “numerous phone conversations” with defendant about the grounds for his motion — namely, that assigned counsel’s communication of the People’s plea offer amounted to coercion; that defendant’s learning disability had prevented him from comprehending the consequences of his plea; and that the Conflict Defender was herself conflicted out of representing defendant. Based on her conversations with defendant, the Conflict Defender stated to County Court, “I don’t believe there is anything that warranted [defendant] withdrawing a plea, so I didn’t file a motion” … . “While apparently inadvertent, counsel’s remark . . . affirmatively undermined arguments her client wished the court to review, thereby depriving defendant of effective assistance of counsel” … , and the court should have relieved the Conflict Defender and assigned new counsel to represent defendant on the motion … .

We also agree with defendant that the allegations of assigned counsel’s ineffectiveness were sufficiently serious and factually specific to trigger County Court’s duty to consider his request for substitute counsel … . An indigent defendant’s right to court-appointed representation “does not encompass a right to appointment of successive lawyers at defendant’s option” … . “Rather, a defendant may be entitled to new counsel only upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel” … . * * *

In addition to alleging that assigned counsel coerced him into pleading guilty, defendant’s letters to County Court asserted that assigned counsel failed to visit him in jail or discuss his case with him; dodged his phone calls on specific dates; sent other attorneys to represent defendant who did not seem to be knowledgeable about the case; intended to oppose any motion defendant made to substitute counsel; and told defendant that his only other options for representation were to hire private counsel or represent himself. Further, defendant indicated that assigned counsel misadvised defendant about his sentencing exposure in a prior case, resulting in an appeal from that conviction on the ground of assigned counsel’s ineffectiveness. Defendant also alleged that assigned counsel was not relaying information or following his instructions in representing him in a separate, contemporaneous criminal action against him. Reading defendant’s allegations of ineffectiveness in the context of defendant’s purported history with assigned counsel, defendant’s complaints set out a plausible claim that the trust and communication between him and assigned counsel had broken down irretrievably … . Faced with these complaints, the court was required to “make at least a minimal inquiry, and discern meritorious complaints from disingenuous applications by inquiring as to the nature of the disagreement or its potential for resolution” … . People v Ubrich, 2025 NY Slip Op 02824, Third Dept 5-8-25

Practice Point: Here defense counsel’s remark that defendant’s request to withdraw his plea was unwarranted demonstrated a conflict of interest requiring the assignment of new counsel.

Practice Point: Here defendant raised serious issues about assigned counsel’s representation requiring the judge to consider his request for substitute counsel.

Practice Point: Here defendant raised serious issues in support of his request to withdraw his guilty plea which required an inquiry by the judge.

 

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THE DOCTRINE OF ABATEMENT AB INITIO REMAINS VALID; WHERE A DEFENDANT DIES BEFORE THE CONVICTION BECOMES FINAL THROUGH THE APPELLATE PROCESS VACATION OF THE CONVICTION AND DISMISSAL OF THE INDICTMENT IS REQUIRED; HERE BOTH DEFENDANTS HAD BEEN CONVICTED AND DIED BEFORE SENTENCING (FIRST DEPT).

The First Department affirmed Supreme Court in two consolidated cases in which the People unsuccessfully argued the doctrine of abatement ab initio should no longer be followed. The doctrine provides that where a defendant dies before the appellate process is complete the conviction is vacated and the indictment dismissed:

In these consolidated cases (People v Ricardo Cruciani and People v Jessie Nowell), the People, as the appellant, raise similar questions: Whether we should decline to follow, in the particular circumstances of each case, the common-law doctrine of abatement ab initio, which was first pronounced by the Court of Appeals in People v Mintz (20 NY2d 770 [1967]). The abatement ab initio doctrine seeks to protect a defendant’s constitutional due process rights that are afforded by appellate review of a conviction (see People v Matteson, 75 NY2d 745, 747 [1989]). Under this doctrine, the death of a defendant whose conviction has not become final through the appellate process results in the abatement of not only any pending appeal but also all proceedings from the case’s inception. In Cruciani, defendant’s conviction resulted from a jury verdict, but he died before sentencing. In Nowell, defendant’s conviction resulted from a guilty plea, but he died before sentencing. In each case, the trial court granted defense counsel’s motion to vacate the conviction and dismiss the indictment pursuant to the abatement ab initio doctrine. People v Cruciani, 2025 NY Slip Op 02735, First Dept 5-6-25

Practice Point: The doctrine of abatement ab initio requires the vacation of the conviction and dismissal of the indictment where a defendant dies before the appellate process is complete.

 

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THE CASE WAS REMITTED TO SUPREME COURT TO PROCURE A RULING ON WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; YET DEFENSE COUNSEL FOCUSED ON DEFENDANT’S SENTENCING AS AN ADULT AND ESSENTIALLY IGNORED THE “YOUTHFUL OFFENDER” ISSUE; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL (FOURTH DEPT).

The Fourth Department, reserving decision on the appeal and remitting the matter again, determined defendant did not receive effective assistance of counsel. The sole purpose for initially remitting the matter to Supreme Court was to procure a ruling on whether defendant should be afforded youthful offender status. But defense counsel focused only on defendant’s sentencing as an adult and essentially ignored the “youthful offender” issue. The Fourth Department offered a concise description of the New York State (as opposed to the federal) criteria for ineffective assistance:

Where, as here, a defendant contends that they received ineffective assistance of counsel under both the Federal and New York State Constitutions, “we evaluate the claim using the state standard, which affords greater protection than its federal counterpart” … . “In New York, the standard for effective assistance is ‘meaningful representation’ by counsel” … . The ” ‘state standard . . . offers greater protection than the federal test’ because, ‘under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of [fair process]’ … . Although our courts “remain ‘skeptical’ of ineffective assistance of counsel claims where the defendant is unable to demonstrate any prejudice at all” … , in applying our state standard, we consider prejudice to be ” ‘a significant but not indispensable element in assessing meaningful representation’ ” … . Stated differently, “[w]hile the inquiry focuses on the quality of the representation provided to the [defendant], the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” … . “[T]he right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense . . . and who is familiar with, and able to employ[,] . . . basic principles of criminal law and procedure” … . Inasmuch as the defendant “bears the burden of establishing [a] claim that counsel’s performance is constitutionally deficient[,] . . . [the] defendant must demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged failure” … . * * *

The record establishes that, despite the specified purpose of the remittal, defense counsel submitted a memorandum riddled with spelling, grammatical, and syntax errors in which he requested that defendant be resentenced as an adult to a reduced determinate term of imprisonment and an unspecified period of postrelease supervision. Rather than providing an affirmative argument for adjudicating defendant a youthful offender based on the various factors to be considered … , defense counsel merely mentioned youthful offender status in passing to note that which was already known, namely, that the sentencing court had originally failed to address whether defendant should receive youthful offender status and thus never considered certain circumstances related to defendant. Defense counsel thereafter proceeded to make arguments that were relevant to defendant’s initial sentencing as an adult and the appellate challenges thereto but were unrelated to the factors applicable to determining upon remittal whether defendant should be afforded youthful offender status and, in doing so, defense counsel also occasionally misstated the issues considered on defendant’s prior appeals … . People v Nathan, 2025 NY Slip Op 02700, Fourth Dept 5-2-25

Practice Point: Consult this decision for a concise description of the criteria for effective assistance of counsel under the New York State (as opposed to the United States) Constitution.

 

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DUE TO AN APPARENT DRAFTING ERROR, A 16-YEAR SENTENCE IS VALID FOR A FIRST TIME VIOLENT FELONY OFFENDER BUT IS ILLEGAL (EXCESSIVE) FOR A SECOND VIOLENT FELONY OFFENDER; THE FACIALLY ILLEGAL SENTENCE MUST BE VACATED; THE ERROR NEED NOT BE PRESERVED (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence, determined the sentence was illegal due to an apparent drafting error. The court noted the error need not be preserved for appeal:

… [T]he 16-year determinate sentence of imprisonment imposed by County Court is illegal. Had defendant been sentenced as a first-time violent felony offender, the court could have imposed a determinate sentence between 7 and 20 years of imprisonment for the conviction of attempted aggravated assault upon a police officer (see Penal Law § 70.02 [3] [b] [ii]). As a second violent felony offender convicted of a class C violent felony, however, defendant faced a determinate sentence of between 7 and 15 years (§ 70.04 [3] [b]). Thus, although seemingly a statutory anomaly resulting from a drafting error … , the 16-year sentence is illegal because it exceeds the maximum sentence permitted by the unambiguous statutory text based on defendant’s predicate felony offender status. “Although [that] issue was not raised before the [sentencing] court . . . , we cannot allow an [illegal] sentence to stand” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing … . People v Barnes, 2025 NY Slip Op 02694, Fourth Dept 5-2-25

Practice Point: A statutory limit placed on a sentence must be complied with by the judge even where, as here, the limit is an obvious drafting error.

 

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THE RECORD IS SILENT ABOUT THE REASON FOR DEFENDANT’S PERIODIC ABSENCE FROM THE TRIAL; WHERE THERE IS NO EVIDENCE A DEFENDANT’S ABSENCE WAS DELIBERATE, CONDUCTING THE TRIAL IN DEFENDANT’S ABSENCE IS A “MODE OF PROCEEDINGS” ERROR REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that conducting the trial in the defendant’s absence was a “mode of proceedings” error which need not be preserved for appeal. If it is clear from the record that a defendant’s absence from the trial was deliberate, there is no error. But here the record was silent about the reason for defendant’s periodic absence:

Because defendant initially appeared for trial, the court was required to determine that his absence was deliberate in order to find that he had forfeited his right to be present … . In making such a determination, a court should “inquire[ ] into the surrounding circumstances” and “recite[ ] on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate” … . Even if the court fails to recite those facts and reasons on the record, no error will be found so long as the court found the absence to be deliberate and the record contains sufficient facts to support that determination, such as where the court granted a brief adjournment to attempt to locate the defendant to no avail … .

Here, the court proceeded in defendant’s absence without making a finding on the record that defendant’s absence was deliberate, without stating facts and reasons that would support a finding of deliberateness, and without granting an adjournment or taking other steps to locate defendant. Under these circumstances, the court committed reversible error and a new trial is required … . People v Taft, 2025 NY Slip Op 02685, Fourth Dept 5-2-25

Practice Point: Where, as here, a defendant is periodically absent from the trial a “mode of proceedings” error has been committed unless the record demonstrates defendant’s absence was a deliberate choice on defendant’s part. Here the record was silent about the reason for defendant’s absence requiring reversal.

 

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

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

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

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

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

 

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FAMILY COURT, AFTER A NONJURY TRIAL, AWARDED SOLE CUSTODY TO FATHER WHO RESIDES IN FLORIDA; THE CHILDREN APPEALED; THE SECOND DEPARTMENT REVERSED AND AWARDED SOLE CUSTODY TO MOTHER, IN PART BECAUSE FAMILY COURT DID NOT CONSIDER THE WISHES OF THE CHILDREN AGES 12 AND 15 (SECOND DEPT).

The Second Department, in an appeal by the children, reversing Family Court’s order issued after a nonjury trial, determined the record did not support the award of sole custody to plaintiff father who resides in Florida and who indicated during the proceedings he was not seeking residential custody of the children. The Second Department awarded sole custody to defendant mother:

“The court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child” … . “In determining an initial petition for child custody, the totality of the circumstances, includes, but is not limited to, (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent’s relative fitness, including his or her ability to guide the child, provide for the child’s overall well being, and foster the child’s relationship with the noncustodial parent; and (5) the child’s desires” … . “Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and therefore, deference is accorded to the trial court’s findings in this regard” … . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record” … .

Here, the Supreme Court’s determination to award sole legal and residential custody of the children to the plaintiff lacks a sound and substantial basis in the record. The plaintiff, who resides in Florida, represented during the proceedings that he was not seeking residential custody of the children. Moreover, while strict application of the factors relevant to relocation petitions … is not required in the context of an initial custody determination, the record does not indicate the court fully considered the impact of moving the children away from the defendant, and the only home they have known, to live with the plaintiff in Florida … . In addition, under the circumstances presented, the court failed to give sufficient weight to the expressed preference of the children, who were 12 and 15 years old, respectively, as of the conclusion of the trial, to reside with the defendant … . Joseph P. A. v Martha A., 2025 NY Slip Op 02562, Second Dept 4-30-25

Practice Point: Here the appellate court reversed Family Court which had awarded sole custody to father after a nonjury trial. It appears that the main basis for the reversal was Family Court’s failure to consider the wishes of the children who were 12 and 15. The children appealed Family Court’s order.

 

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