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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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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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A CONFERENCE IN CHAMBERS ABOUT WHETHER DEFENDANT WAS FIRED BECAUSE OF THE SEX ABUSE ALLEGATIONS WHICH WERE THE SUBJECT OF THE TRIAL WAS DEEMED TO BE A MATERIAL STAGE OF THE TRIAL AT WHICH DEFENDANT SHOULD HAVE BEEN PRESENT BECAUSE DEFENDANT HAD FIRST-HAND KNOWLEDGE OF THE FACTS; THE COURT RULED EVIDENCE OF THE FIRING COULD BE PRESENTED; DEFENSE COUNSEL’S WAIVER OF DEFENDANT’S PRESENCE WAS DEEMED INSUFFICIENT; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s sex-offense convictions and ordering a new trial, determined it was error to fail to include the defendant in sidebar and chambers conferences and defense counsel’s waiver of defendant’s presence was insufficient:

… County Court did not at any point advise defendant of his right to be present during sidebar conferences. * * * … [A]fter jury selection concluded but before the trial began, a conference was held with the attorneys in chambers wherein defendant plainly was not present. During this conference, County Court heard arguments from both defense counsel and the prosecutor regarding the admissibility of certain evidence, including testimony that defendant was fired from his job at the YMCA following the [sexual abuse] incident in question. There was discussion by the attorneys and the court as to the reason for defendant’s termination and whether it was based upon the charged conduct in this case. The court ruled that evidence of defendant’s firing would be allowed. It was only after it had issued its ruling that the court acknowledged that defendant was not present, whereupon defense counsel stated, “I can waive his appearance.”

Noting that the conference was conducted for the purpose of determining the admissibility of proposed testimony, and further recognizing that defendant presumably had personal knowledge of the circumstances surrounding his firing such that he would have been able to meaningfully participate in the discussion … , we find that this conference constituted a material stage of the trial at which defendant had the right to be present. In that regard, the transcript of the conference makes apparent that County Court’s ultimate ruling on this issue turned on the precise reason for defendant’s termination, and defendant was deprived of the opportunity to assist his counsel in advocating against the admission of the subject testimony. Therefore, it cannot be said “that defendant’s presence would have been useless, or the benefit but a shadow” … . People v Benton, 2025 NY Slip Op 06559, Third Dept 11-26-25

Practice Point: Consult this decision for insight into when the failure to include defendant in a sidebar or chambers conference will be deemed reversible error.

 

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HERE THE MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTUAL ALLEGATIONS SUPPORTING ONE OF THE COUNTS; THEREFORE THE PEOPLE’S CERTIFICATION OF COMPLIANCE WITH CPL 30.30 (5-A) WAS INACCURATE; THE INACCURACY REQUIRED THE DISMISSAL OF THE COUNT, NOT THE INVALIDATION THE PEOPLE’S CORRESPONDING CPL 245.20 STATEMENT OF READINESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined that if the People’s CPL 30.30 (5-a) certification is inaccurate because the misdemeanor complaint did not include facts supporting one of the counts, the appropriate remedy is dismissal of the defective count, not the invalidation of the People’s statement of readiness:

On its face, the clear language of CPL 30.30 (5-a) requires that the People, in conjunction with filing their statement of readiness, certify that each count of the accusatory instrument is supported by facially sufficient, nonhearsay allegations, and that any counts that are not so supported have been dismissed. However, the statute does not provide for any readiness-related consequence for a mistaken or incorrect certification …. Such a requirement would make little sense because facial sufficiency is a legal question—sometimes a close legal question—and the People cannot reasonably be expected to attest accurately to the outcome of a defendant’s challenge to the facial sufficiency of the instrument … .

Defendant contends that the People’s obligation to certify facial sufficiency should be treated the same as the requirement that they certify compliance with their discovery obligations under CPL article 245. A comparison of the text of the relevant provisions reveals why this interpretation is incorrect. CPL 30.30 (5), as originally enacted in 2019, specifically stated that any “statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of [CPL 245.20] and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met.” Mirroring this provision, CPL 245.50 (3) provided that “the prosecution shall not be deemed ready for trial for purposes of [CPL 30.30] until it has filed a proper certificate” of compliance (former CPL 245.50 [3] [emphasis added]). .. [R]ead together, CPL 245.50 and [CPL] 30.30 require that due diligence must be conducted prior to filing a” certificate of compliance… . Thus, unlike the subdivision (5-a) certification requirement, the legislature specifically provided that an invalid certificate of compliance would render the People’s accompanying statement of readiness illusory. The legislature could have, but did not, similarly tie the accuracy of certification pursuant to subdivision (5-a) to the People’s trial readiness. People v Williams, 2025 NY Slip Op 06535, CtApp 1125-25

Practice Point: The failure to include factual allegations in support of a count in a misdemeanor complaint which has been certified to be in compliance with CPL 30.30 (5-a) requires dismissal of that count, but does not invalidate the corresponding CPL 245.20 statement of readiness.

 

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INDIGENT PARTIES WHO ARE ASSIGNED COUNSEL IN FAMILY COURT PROCEEDINGS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL; HERE IN THESE PERMANENT-NEGLECT/TERMINATION-OF-PARENTAL-RIGHTS PROCEEDINGS, THE MAJORITY CONCLUDED MOTHER DID NOT RECEIVE EFFECTIVE ASSISTANCE; THERE WAS A THREE-JUDGE DISSENT (CT APP). ​

The Court of Appeals, reversing the Appellate Division, over a two-judge dissent, determined mother had a right to, but did not receive, effective assistance of counsel in the permanent neglect proceeding in Family Court. Assigned counsel did not speak to mother until after the fact-finding hearing had begun, was unprepared, and did not request an adjournment. During the fact-finding hearing, mother asked to represent herself and waived her right counsel. Assigned counsel remained in a standby capacity. After the fact-finding hearing, the court moved directly to the dispositional hearing. During the dispositional hearing mother’s request for representation was denied:

… [D]espite being assigned more than two months earlier, counsel had not spoken to the mother before the hearing to terminate her parental rights had already begun. We cannot determine based on this record why counsel and the mother did not speak prior to the fact-finding hearing, and the court did not inquire, so the reasons for that lack of communication are pure speculation. Even assuming … that counsel attempted to contact the mother but was unsuccessful, there is no strategic or other reasonable explanation for counsel’s failure to request an adjournment of the proceeding so that he could speak to his client before the fact-finding hearing began, especially when the mother indicated that she would not be surrendering her parental rights. Before the mother indicated that she would not, in fact, surrender her parental rights, counsel could have legitimately thought that the fact-finding hearing would not go forward. However, once it was clear that the hearing was about to commence, counsel should have requested an adjournment to speak to his client about the proceeding and its implications. Counsel’s failure to do so lacks a strategic or legitimate explanation.

Counsel also appeared unprepared, questioning whether the records that were subpoenaed were available to be reviewed and announcing that he would remain silent during the hearing, only to be admonished by the court that he was required to participate. In addition, the court, faced with a record that showed counsel’s unpreparedness to proceed due to lack of communication, continued forward with the fact-finding hearing and the dispositional hearing even after it was clear that the mother did not understand the proceedings, denied the mother’s subsequent request to be represented by counsel even though the court told the mother she could change her mind about self-representation, and gave the mother’s standby counsel only five minutes in which to explain the proceedings to her. Matter of Parker J. (Beth F.), 2025 NY Slip Op 06533, CtApp 11-25-25

Practice Point: Consult this opinion for insight into what constitutes ineffective assistance of counsel in the context of an assigned counsel representing an indigent parent in permanent neglect and termination of parental rights proceedings.

 

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IN DETERMINING WHETHER THE PEOPLE’S CERTIFICATE OF COMPLIANCE WITH THEIR DISCOVERY OBLIGATIONS WAS VALID THE MOTION COURT RULED THE PEOPLE HAD ACTED IN GOOD FAITH; THE MATTER WAS REMITTED FOR THE APPLICATION OF THE CORRECT STANDARD: WHETHER THE PEOPLE ACTED WITH DUE DILIGENCE AND MADE REASONABLE EFFORTS TO SATISFIY THEIR OBLIGATIONS (FOURTH DEPT).

The Fourth Department remitted the matter for a new determination whether the People’s certificate of compliance (COC) with their discovery obligations was valid. The motion judge held the People “acted in good faith.” The appropriate inquiry is whether the People exercised due diligence and made reasonable efforts to satisfy their obligations:

… [T]he court erred in concluding that the People’s initial COC was proper solely on the basis that the People acted in good faith with respect to their discovery obligations. The court was required to determine whether the People satisfied their burden of establishing that they exercised due diligence and made reasonable efforts to satisfy their obligations under CPL article 245 at the time they filed their initial COC … . In light of the court’s failure to consider whether the People met that burden, we hold the case, reserve decision and remit the matter to Supreme Court to make that determination and, if appropriate, to determine whether the statement of readiness was valid and whether the People were ready within the requisite time period (see CPL 30.30 [1] [a]). People v Mosley, 2025 NY Slip Op 06484, Fourth Dept 11-21-25

Practice Point: The standard for determining whether the People’s certificate of compliance with their discovery obligations is valid is “due diligence,” not “good faith.”

 

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DEFENDANT MOVED TO SUPPRESS THE WEAPON SEIZED FROM DEFENDANT’S VEHICLE AFTER A TRAFFIC STOP ON THE GROUND THERE WAS NO PROBABLE CAUSE FOR THE STOP; THE POLICE CLAIMED THE REASON FOR THE STOP WAS DEFENDANT’S FAILURE TO WEAR A SEATBELT; SURVEILLANCE VIDEOS WHICH WOULD HAVE SHOWN WHETHER DEFENDANT WAS WEARING A SEARBELT WERE NOT PRESERVED; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AN ADVERSE INFERENCE CHARGE IN CONNECTION WITH THE SUPPRESSION MOTION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for legal argument and, if defendant so requests, reopening of the suppression hearing, determined defendant did not receive effective assistance of counsel. Surveillance videos which would have shown whether defendant was not wearing a seatbelt (the claimed probable cause for the stop) were not preserved. Defendant moved to suppress the weapon seized from the vehicle on the ground there was no probable cause for the traffic stop. Defense counsel was deemed ineffective for failing the request an adverse inference charge:

… [T]he single omission of failing to request that the court consider an adverse inference charge at the suppression hearing deprived defendant of meaningful representation … . Defense counsel’s error in failing to make that argument was sufficiently egregious and prejudicial as to deprive defendant of his constitutional right to effective legal representation because the only evidence presented by the People at the hearing was testimony from one of the arresting officers, whose testimony was inconsistent at times, and an adverse inference charge could have successfully undermined the officer’s testimony on the issue of probable cause to stop defendant, i.e., whether defendant was, in fact, not wearing a seatbelt. Indeed, suppression of the gun that was seized as a result of defendant’s encounter with the police would have been dispositive of the sole count of the indictment, charging defendant with criminal possession of a weapon in the second degree … . Under the circumstances of this case, defense counsel’s failure to request an adverse inference charge could not have been grounded in legitimate strategy … . We note that defendant’s contention survives his guilty plea inasmuch as he demonstrated that defense counsel’s error infected the plea bargaining process … .

We therefore conditionally modify the judgment by remitting the matter to Supreme Court “for further proceedings on the suppression application, to include legal argument by counsel for both parties and, if defendant so elects, reopening of the hearing” … . In the event that defendant prevails on the suppression application, the judgment is reversed, the plea is vacated and the indictment is dismissed and, if the People prevail, then the judgment “should be amended to reflect that result” … . People v Evans, 2025 NY Slip Op 06477, Fourth Dept 11-21-25

Practice Point: Here surveillance videos which would have shown whether defendant was not wearing a seatbelt (the claimed probable cause for the traffic stop) were not preserved. Defendant moved to suppress the weapon seized from the vehicle on the ground there was no probable cause for the stop. Defense counsel was deemed ineffective for failing to request an adverse inference charge with respect to the suppression hearing. The remedy: the matter was remitted for legal argument and, if defendant requests, reopening of the suppression hearing.

 

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THE MOTION COURT PROPERLY ISSUED A PROTECTIVE ORDER REQUIRING PLAINTIFF’S COUNSEL IN THIS MED MAL CASE TO RESCIND THE CORRESPONDENCE SENT TO PLAINTIFF’S TREATMENT PROVIDERS WHICH DISCOURAGED THEM FROM SPEAKING WITH DEFENSE COUNSEL; THE DISSENT ARGUED THE MAJORITY WAS IMPROPERLY ISSUING AN ADVISORY OPINION (FOURTH DEPT).

The Fourth Department, over a dissent which argued the majority was improperly issuing an advisory opinion, determined the trial judge in this medical malpractice action properly ordered plaintiff’s counsel rescind correspondence sent to treatment providers which discouraged the treatment providers from speaking with defense counsel. The correspondence accompanied the “Arons” speaking authorizations executed by the plaintiff:

… [A] plaintiff who signs an authorization allowing a treating physician to speak to defense counsel about the plaintiff’s medical condition at issue should not be allowed to send a letter separately to the same physician requesting that the physician not speak to defense counsel. Permitting plaintiffs to make such a request would undermine the purpose of the Arons authorization and, at the very least, be confusing to the physician … .

Adding to the confusion is the statement “I value and wish to protect the confidentiality of our physician-patient relationship,” which may lead the physician to conclude that, notwithstanding plaintiff’s execution of the speaking authorization, plaintiff was not actually waiving the physician-patient privilege or the privacy protections afforded by HIPAA. …

… [T]he letter … might lead the physician to believe, wrongly, that plaintiff has a right to attend any informal interview with defense counsel. … [A] defendant’s attorney may ask treating physicians to participate in ex parte interviews, which by definition do not involve the plaintiff. While a physician may insist that the plaintiff be present for such an interview, that is a decision for the physician alone to make. Just as a defendant’s attorney has no right to interview the physician informally … , a plaintiff has no right to attend the interview (the plaintiff has only the right to ask the physician for permission to attend an interview).

Based on the above, we cannot conclude that the court abused its discretion in directing plaintiff “to send correspondence to his treating physicians rescinding all prior letters sent containing the language that the [c]ourt has deemed to be confusing, misleading and/or intimidating.”  Murphy v Kaleida Health, 2025 NY Slip Op 06421, Fourth Dept 11-21-25

Practice Point: Here the letters sent to treatment providers by plaintiff’s counsel, which accompanied the “Arons” speaking authorizations, improperly discouraged the treatment providers from speaking with defense counsel. Plaintiff’s counsel was properly ordered to rescind the correspondence.

 

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THE DISTRICT ATTORNEY’S DATASHEET IS AN ATTORNEY-WORK-PRODUCT WHICH IS NOT SUBJECT TO FOIL DISCLOSURE; BECAUSE PETITIONER DID NOT SUBSTANTIALLY PREVAIL IN THE FOIL PROCEEDINGS, PETITIONER WAS NOT ENTITLED TO AN AWARD OF ATTORNEY’S FEES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the District Attorney’s (D.A.’s) datasheet was an attorney-work-product which was not subject to a FOIL disclosure:

Supreme Court appropriately ordered an in camera inspection of all records responsive to petitioner’s FOIL request, including the datasheet that was ultimately produced with redaction of personal information regarding certain people involved in the relevant criminal matter (Public Officers Law § 84 et seq.). However, those records should not have included the D.A. datasheet. This Court has previously held that the D.A. datasheet constitutes attorney work product, as it contains the analysis and conclusions of the intake attorney … . As a result, CPLR 3101(c) protects the datasheet from disclosure under FOIL, and it is not subject to disclosure even with redactions … .

In light of this determination, the award of attorneys’ fees is unwarranted, as petitioner has not “substantially prevailed” in its appeal of respondent’s denial … . Furthermore, even had petitioner substantially prevailed, Supreme Court made no “find[ing] that the agency had no reasonable basis for denying access,” and thus, there was no basis for an award of attorneys’ fees to petitioner … . Matter of Law Off. of Cyrus Joubin v Manhattan Dist. Attorney’s Off., 2025 NY Slip Op 06283, First Dept 11-18-25

Practice Point: A FOIL request for a District Attorney’s datasheet will be denied because the datasheet is privileged (attorney-work-product).

 

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ALTHOUGH PLAINTIFF’S COUNSEL IN THIS NEGLIGENCE ACTION DEMONSTRATED A JUSTIFIABLE EXCUSE FOR NOT TIMELY FILING A NOTE OF ISSUE AFTER A NINETY-DAY DEMAND, PLAINTIFF DID NOT DEMONSTRATE A MERITORIOUS CAUSE OF ACTION; PLAINTIFF SUBMITTED AN AFFIDAVIT WHICH RELIED ON HEARSAY PROVIDED BY TWO SOURCES, BUT DID NOT SUBMIT AFFIDAVITS FROM THOSE SOURCES (FIRST DEPT).

The First Department, reversing Supreme Court, determined, although plaintiff offered a justifiable excuse for failing to timely file a note of issue, plaintiff did not demonstrate a meritorious cause of action. Therefore the complaint should have been dismissed. The complaint alleged the defendants negligently failed to provide adequate mental health and substance abuse treatment to the decedent, who died of a drug overdose in a shelter owned and operated by defendants:

Following a period of over one year during which plaintiff failed to respond to their discovery demands, defendants served plaintiff with a written demand to serve and file a note of issue within 90 days (see CPLR 3216[b]). Plaintiff failed to respond within the 90-day period, resulting in defendants’ motions to dismiss for failure to prosecute.

Although plaintiff’s counsel offered a justifiable excuse for the failure to file a note of issue following defendants’ service of 90-day notices, plaintiff failed to submit an adequate affidavit of merit demonstrating a meritorious cause of action in opposition to defendants’ motions … . In her affidavit, plaintiff, who had no personal knowledge of the events in question, relied on two unnamed hearsay sources … . Plaintiff offered no excuse for failing to provide affidavits from the shelter residents who supplied her with the information upon which her affidavit was based … , and, in any event, she did not show that defendants’ negligence was “a substantial cause of the events” resulting in her son’s death … . Felipe v Volunteers of Am.-Greater N.Y., 2025 NY Slip Op 06252, First Dept 11-13-25

Practice Point: In seeking to avoid dismissal of a complaint for failing to timely file a note of issue after a 90-day demand, a plaintiff must offer a justifiable excuse and demonstrate a meritorious cause of action. Here plaintiff’s counsel provided a justifiable excuse. But to demonstrate a meritorious cause of action plaintiff submitted an affidavit which relied on hearsay. Without affidavits from the sources of the hearsay, a meritorious cause of action was not demonstrated and the complaint should have been dismissed.

 

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