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THE FIRST DEPARTMENT, AGREEING WITH THE SECOND, DETERMINED THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DOES NOT HAVE THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER WHO HAD BEEN ABUSED BY RESPONDENT FATHER IN THE CHILD’S PRESENCE; THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER IS ONLY TRIGGERED WHEN THE COURT ORDERS THE CHILD REMOVED FROM THE HOME, NOT THE CASE HERE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, considering the appeal as an exception to the mootness doctrine, determined the court did not have the authority under the Family Court Act to order the Administration for Children’s Services (ACS) to supervise a so-called “nonrespondent” mother who had been abused by respondent father in the presence of the 14-month-old child. By all accounts mother was “a good mother” and “very strong [and] hard-working.” Yet over the course of six months mother was subjected to 15 announced and unannounced home visits by an ACS caseworker who searched every room, the contents of the refrigerator, and inspected the child’s body:

As noted by the Sapphire W. Court [237 AD3d 41, Second Dept, 2-5-25] “in 2015, the Legislature enacted sweeping legislation that amended various statutes, including Family Court Act § 1017, in order to provide nonrespondent parents with greater participation in abuse or neglect proceedings, while also expand[ing] the options available to Family Court judges when craft[ing] appropriate orders respecting the rights of non-respondent parents [and] assuring the safety and well being of children who are the subjects of the proceedings . . . . Among other things, the legislation clarifie[d] the language of Family Court Act § 1017 by referring specifically to non-respondent parent, relative or suitable person as potential resources a court may consider after determining that a child must be removed from his or her home” … .

We agree with the sound reasoning in Matter of Sapphire W. and hold that Family Court Act §§ 1017 and 1027(d) do not permit supervision of a nonrespondent parent who has been caring for the child, in the absence of a court-ordered removal of the child. We further concur with the Second Department that, “[c]onsidering the intrusive and potentially traumatic impact of ACS involvement in a family’s life, the disproportionate involvement of Black and Hispanic children in the child welfare system cannot be ignored” … . Matter of R.A. (A.R.), 2025 NY Slip Op 04295, First Dept 7-24-25

Practice Point: The Administration for Children’s Services’ (ACS’) authority to supervise a nonrespondent mother who was abused by respondent father in the child’s presence is only triggered if and when the court orders the removal of the child from the home, not the case here. All agreed mother was “a good mother,” yet she was subjected to 15 announced and unannounced searches of her home and inspections of her child over the course of six months.

 

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EXCLUDING A SPECTATOR FROM THE TRIAL BECAUSE HE WAS SLEEPING DEPRIVED DEFENDANT OF HIS RIGHT TO A PUBLIC TRIAL; THE CONSTITUTIONAL ERROR IS NOT SUBJECT TO A HARMLESS ERROR ANALYSIS; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial, determined the judge’s excluding a spectator from defendant’s trial violated the defendant’s right to a public trial. The spectator, apparently a friend of the defendant, had been asleep during the trial. He was excluded solely on that ground:

While trial courts have “inherent discretionary power to exclude members of the public from the courtroom” … , that discretion “must be exercised only when unusual circumstances necessitate it” … . “In sum, ‘an affirmative act by the trial court excluding persons from the courtroom’ without lawful justification constitutes a violation of the defendant’s right to a public trial” … . “A violation of the right to an open trial is not subject to harmless error analysis and a per se rule of reversal irrespective of prejudice is the only realistic means to implement this important constitutional guarantee” … .

Here, after the first day of testimony had concluded and jurors had been dismissed for the day, the Supreme Court excluded a spectator from the courtroom for sleeping, which the court noted was “disrespectful” and “distracting to the jurors.” The court told the spectator … he was “excluded from this courtroom for the rest of this trial” and was “not to return” to the courtroom. * * *

The record demonstrates that the Supreme Court did not sufficiently consider whether less drastic measures could have addressed the spectator’s behavior, such as warning the spectator or requesting that the spectator alter his demeanor in the courtroom … . The court’s statement the next day that the spectator was no longer excluded from the courtroom was insufficient to remedy the court’s error. People v White, 2025 NY Slip Op 04193, Second Dept 7-16-25

Practice Point: A judge has to have a good reason for excluding a spectator from a trial. The fact that the spectator had slept during the trial was not enough. Exclusion of spectators deprives a defendant of the constitutional right to a public trial.

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A POLICE OFFICER DESCRIBED STATEMENTS MADE BY THE VICTIMS BUT THE VICTIMS DID NOT TESTIFY; ALTHOUGH DEFENSE COUNSEL MENTIONED THE LACK OF CROSS-EXAMINATION IN A SUFFICIENCY-OF-EVIDENCE ARGUMENT, THE CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES WAS NOT SPECIFICALLY RAISED; THEREFORE THE CONSTITUTIONAL ISSUE WAS NOT PRESERVED FOR APPEAL; THERE WAS AN EXTENSIVE THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, affirming defendant’s conviction, over a three-judge dissent, determined the constitutional “confrontation” issue first raised on appeal had not been preserved. A police officer testified about the identities and physical descriptions of the assailants provided by one of the victims while she was being treated in an ambulance. The victims were expected to testify but never did:

Defendant’s motion at the close of the People’s case did not invoke the Confrontation Clause and the colloquy that took place between defense counsel and the court makes clear that the motion to dismiss was neither intended nor understood to raise a constitutional issue.  Moreover, counsel did not invoke or rely on any caselaw dealing with constitutional protections. Instead, counsel made evidentiary arguments regarding the persuasive quality of the prosecution’s proof and, when asked by the court, confirmed that the motion was limited to the sufficiency of the evidence. Further, the timing of defendant’s motion at the close of the People’s case—which defense counsel specifically referred to as “a trial order of dismissal” …—suggests that defendant’s aim was not to challenge testimony of the victim’s statements as violative of his right to confrontation, but simply as failing to meet the evidentiary bar for a prima facie case … . Additionally, counsel repeatedly told the court that his motion was “focus[ed]” on the third-degree robbery charge, demonstrating that the argument was a legal insufficiency one, rather than a Confrontation Clause challenge, which would necessarily apply to all charges with equal force. Contrary to defendant’s argument, the mere reference to a lack of cross-examination was insufficient to alert the court that defendant was making a constitutional argument … . People v Bacon, 2025 NY Slip Op 03692, CtApp 6-18-25

Practice Point: Here the violation of defendant’s constitutional right to confront the witnesses against him was a viable issue because statements made by two witness were described by a police officer but the witnesses did not testify. Although defense counsel mentioned the inability to cross-examine the witnesses in a “sufficiency-of-evidence” argument before the trial court, the constitutional confrontation argument was not specifically raised. The majority, over an extensive three-judge dissent, determined the constitutional issue was not preserved for appeal.

 

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HERE DEFENDANT’S SENTENCE WAS REDUCED PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) AFTER SHE HAD BEEN IMPRISONED LONGER THAN THE MAXIMUM ALLOWED BY THE DVSJA; THE EXCESS PRISON TIME SHOULD NOT HAVE BEEN CREDITED TO ELIMINATE THE PERIOD OF POSTRELEASE SUPERVISION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge dissent, determined defendant’s (Brenda’s) sentence was properly reduced by the Appellate Division pursuant to the Domestic Violence Survivors Justice Act (DVSJA), but the excess time Brenda was imprisoned beyond the maximum allowed by the DVSJA should not been credited to eliminate the period of postrelease supervision:

The DVSJA requires that resentenced defendants be given a period of postrelease supervision. Penal Law § 70.45 (2) (f) … states that that the period of postrelease supervision for resentences imposed under Penal Law § 60.12 (8) “shall be” not less than two and one-half years nor more than five years. That requirement is specific to DVSJA resentences. * * *

… [T]he Appellate Division was within its plenary factual review power when it reversed and reduced Brenda’s sentence pursuant to the DVSJA, but because the court’s imposition of the maximum term of postrelease supervision may have been based on its erroneous conclusion that time Brenda spent incarcerated beyond that imposed by the DVSJA resentencing could be credited against the term of postrelease supervision required by the DVSJA, the order of the Appellate Division should be modified, without costs, by remitting the case to the Appellate Division for further proceedings in accordance with this opinion … . People v Brenda WW., 2025 NY Slip Op 03643, CtApp 7-17-25

Practice Point: The Appellate Division has the power to make a “de novo” determination whether a defendant is entitled to a sentence reduction pursuant to the Domestic Violence Survivors Justice Act (DVSJA).​

Practice Point: Where a defendant’s sentence is reduced under the DVSJA to a term below the amount of time already served by the defendant, the excess time cannot be credited towed the period of postrelease supervision.

 

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A WAIVER OF APPEAL DOES NOT PRECLUDE A CHALLENGE TO A PROBATION CONDITION ALLOWING WARRANTLESS SEARCHES; THE CONDITION ALLOWING ALLOWING WARRANTLESS SEARCHES FOR DRUGS WAS NOT REASONABLY RELATED TO DEFENDANT’S REHABILITATION (FIRST DEPT).

The First Department determined (1) a waiver of appeal does not preclude a challenge to a probation condition allowing warrantless searches, and (2) there was no justification for the condition allowing warrantless searches for drugs:

Defendant’s appeal waiver does not foreclose his challenge to the condition of probation requiring that he consent to warrantless searches of his person, vehicle, and home for weapons, drugs, and drug paraphernalia … , which also does not require preservation … . To the extent this condition authorized the Department of Probation to conduct warrantless searches for weapons, we find that it was “reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so” … , “given that he was armed with a sharp object when he committed this violent offense” … .

However, the portion of the condition of probation authorizing warrantless searches by a probation officer for illegal drugs and drug paraphernalia “was not reasonably related to defendant’s rehabilitation” … . Defendant’s crime “did not appear connected to the sale or use of drugs” (id.), he was not “under the influence of any substance” when he committed the offense, and he “had no history of offenses involving substance abuse” … . People v Rivera, 2025 NY Slip Op 03654, First Dept 6-17-25

Practice Point: A wavier of appeal does not preclude a challenge to a probation condition allowing warrantless searches.

Practice Point: A condition of probation allowing warrantless searches for drugs is not appropriate where there is no history of drug offenses.

 

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PLAINTIFF’S DECEDENT WAS KILLED WHEN THROWN FROM A RENTED MOPED; THE RENTAL AGREEMENT INCLUDED AN ARBITRATION CLAUSE; THE NEGLIGENCE CAUSES OF ACTION ARE SUBJECT TO THE ARBITRATION CLAUSE; HOWEVER, THE WRONGFUL DEATH CAUSE OF ACTION IS NOT SUBJECT TO THE ARBITRATION CLAUSE; NEGLIGENCE AND WRONGFUL-DEATH CAUSES OF ACTION ARE DISTINCT AND ADDRESS DIFFERENT INJURIES; THE WINNING ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice McCormack, determined the plaintiffs in this wrongful death action, who are the parents of plaintiffs’ decedent and the administrators of decedent’s estate, are not bound by the decedent’s agreement to arbitrate. The decedent rented an electric moped from defendant Ravel by downloading an app with an arbitration clause. Decedent was killed when he was thrown from the moped and struck by a car. All agreed that the negligence causes of action were subject to the arbitration clause. Plaintiffs successfully argued the wrongful death action is distinct from the negligence actions and is not subject to the arbitration clause. The winning argument was first raised on appeal. The court heard the appeal because it “present[ed] a pure question of law that appears on the face of the record and could not have been avoided if raised at the proper juncture” …:

Here, it is undisputed that the plaintiffs, individually, did not enter into an agreement with Revel to arbitrate. However, the plaintiffs are the administrators of the decedent’s estate, and the causes of action arise from the same incident that caused the decedent’s death. The issue, therefore, turns on the nature of wrongful death causes of action and whether they are derivative of negligence causes of action or independent of negligence causes of action. * * *

The law of this State is clear that a wrongful death cause of action is a separate and distinct cause of action to redress the injuries suffered by a decedent’s distributees as a result of the decedent’s death. “‘A cause of action to recover damages for wrongful death is a property right belonging solely to the distributees of the decedent and vests in them at the decedent’s death'” … . This is true even where no cause of action alleging negligence exists. * * * … [T]his Court [has] determined that a cause of action alleging wrongful death was not derivative of a negligence cause of action, but [is] an independent cause of action vested in the distributees. “… [T]he surviving personal injury action and the wrongful death cause of action … are different in many respects. The two causes of action exist in order to protect the rights of different classes of persons, and the measure of damages is entirely different” … . “Wrongful death actions are brought not to compensate the decedent or his [or her] estate for the pain and suffering attendant to the injury, but rather to recover, on behalf of decedent’s distributees, the pecuniary value of the decedent’s life” … . Further, the different causes of action accrue at different times. A negligence cause of action accrues at the time of the injury, while a wrongful death cause of action does not accrue until the decedent’s death, which can occur after the injury is sustained … . Marinos v Brahaj, 2025 NY Slip Op 03561, Second Dept 6-11-25

Practice Point: Negligence and wrongful death causes of action are distinct and address different injuries. Here an arbitration clause in a moped rental contract executed to by plaintiffs’ decedent was deemed to apply to the negligence causes of action stemming from the moped accident, but not to the related wrongful death cause of action.​

Practice Point: Consult this opinion for an example of when an issue raised for the first time on appeal will be considered by the appellate court.

 

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ALTHOUGH THE EVIDENCE OF DEFENDANT’S CONSTRUCTIVE POSSESSION OF DRUGS AND DRUG PARAPHERNALIA FOUND IN HIS GIRLFRIEND’S APARTMENT WAS DEEMED LEGALLY SUFFICIENT, THE FINDING THAT DEFENDANT CONSTRUCTIVELY POSSESSED THE DRUGS AND PRAPHERNALIA WAS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s bench-trial conviction of criminal possession of a controlled substance and criminally using drug paraphernalia, determined the finding that defendant constructively possessed the drugs and paraphernalia located in his girlfriend’s apartment was against the weight of the evidence. Note that the Fourth Department concluded there was legally sufficient evidence of constructive possession:

… “[W]here there is no evidence that the defendant actually possessed the controlled substance or drug paraphernalia, the People are required to establish that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found” … . The People may establish such constructive possession by circumstantial evidence … , “but a defendant’s mere presence in the area in which the contraband is discovered is insufficient to establish constructive possession” … .

Here, while the People adduced evidence establishing that defendant had a key to the apartment and stayed there “from time to time,” defendant was not a party to the lease and a search of the premises did not reveal anything to “specifically connect[ ] defendant to the places where the contraband was ultimately found” … . Moreover, none of the contraband was in plain view … and, thus, no statutory presumption of defendant’s knowing possession applied … .

We conclude that the weight of the evidence does not support a finding that defendant “exercised dominion or control over the [contraband] by a sufficient level of control over the area in which [it was] found” … . People v Smith, 2025 NY Slip Op 03454, Fourth Dept 6-6-25

Practice Point: Consult this decision for an example of when evidence is legally sufficient to withstand a motion for a trial order of dismissal but a finding based on that same evidence is deemed “against the weight of the evidence.”

 

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

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

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

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

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

 

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

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

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

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

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

 

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HERE AN ARGUMENT RAISED FOR THE FIRST TIME IN PLAINTIFF’S REPLY PAPERS WAS DEEMED NOT PROPERLY BEFORE THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bank’s argument in this foreclosure action should not have been considered because it was raised for the first time in reply papers. In its reply, the plaintiff argued that the foreclosure action was not time-barred because defendant revived the statute of limitations by making payments within the six years prior to the commencement of the action:

[Plaintiff] failed to establish, prima facie, that this action was not time-barred. The plaintiff’s submissions revealed that the mortgage debt was accelerated in January 2007, when the plaintiff commenced the first prior action to foreclose the mortgage … . This action was commenced in July 2018, more than six years later. The plaintiff’s contention that payments the defendant made on the loan as late as September 2013 served to renew the statute of limitations, making this action timely, is not properly before this Court, as it was raised for the first time in reply papers submitted to the Supreme Court, and there is no indication that the defendant was afforded an opportunity to submit a surreply or that this new argument responded to allegations the defendant raised for the first time in his opposition papers … . Bank of N.Y. Mellon v Cooper, 2025 NY Slip Op 03297, Second Dept 6-4-25

Practice Point: Here the Second Department noted that an argument raised for the first time in reply papers was not properly before the appellate court. There was no indication sur-reply papers were submitted or that the reply-argument was a response to an issue raised by the other party.