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DEFENSE COUNSEL LEFT A PROFFER SESSION MIDWAY THROUGH THE PROCEEDINGS; DURING THE PROFFER SESSION DEFENDANT MADE AN INCRIMINATORY STATEMENT WHICH WAS USED TO IMPEACH HIS CREDIBILITY AT TRIAL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction based upon ineffective assistance of counsel should have been granted. Defense counsel left a proffer session midway through the proceedings:

Supreme Court erred in finding that defendant failed to satisfy his burden of establishing that he received ineffective assistance of counsel when his counsel absented himself from a proffer session midway through the session. Absent an express waiver from defendant, counsel had an obligation to be present during the session and to “be alert to, and to avert if he could, the possibility that defendant’s cooperation would hurt rather than help him” … . Under the circumstances, where counsel advanced no sound strategic reason behind his decision to leave the proffer session, his absence deprived defendant of meaningful representation at a critical stage in the proceeding … . Defendant was prejudiced by counsel’s absence, because a statement defendant made during the proffer session implicating himself in the burglaries for which he was ultimately tried and convicted for, was successfully used by the prosecution to impeach defendant’s credibility at the trial … . People v Anonymous, 2026 NY Slip Op 00980, First Dept 2-19-26

Practice Point: A proffer session is a critical stage of a criminal proceedings at which a defendant may incriminate himself. Here defense counsel’s leaving a proffer session midway constituted ineffective assistance warranting vacation of the conviction.

 

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE FOR “IMPAIRMENT” WHICH WAS APPLIED BY THE THIRD DEPARTMENT IN A RECENT VEHICULAR MANSLAUGHTER CASE; IT WAS NOT CLEAR THE “IMPAIRMENT” CHARGE IN THE VEHICULAR MANSLAUGHTER CASE WAS APPLICABLE IN THE INSTANT “DRIVING WHILE ABILITY IMPAIRED BY DRUGS” CASE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined that defense counsel was not ineffective for failing to request a jury instruction based upon a recent Third Department appellate decision [People v Caden N, 189 AD2d at 90-91] which was not clearly applicable. The Third Department had held that the standard for “impairment by drugs” in a vehicular manslaughter case was the higher standard used for “intoxication by alcohol” [a ruling rejected by Court of Appeals in People v Dondorfer, 2026 NY Slip Op 00823, CtApp 2-17-26]. T he charges in the instant case were “driving while ability impaired by drugs,” not vehicular manslaughter:

Defendant argues that Caden N. established a clear right within the Third Department to a jury charge in Vehicle and Traffic Law § 1192 (4) and (4-a) cases that defines impairment by drugs consistent with the higher standard of intoxication by alcohol from Cruz [48 NY2d at 422, 428]. But as the Third Department itself explained below, the holding and reasoning of Caden N. were carefully limited to the statutory scheme for vehicular manslaughter, and at the time of defendant’s trial, no court in this State had extended the reasoning of Caden N. to charges under Vehicle and Traffic Law § 1192 (4) or (4-a) … . Further, the model jury instructions—on which this Court has advised both counsel and trial courts to rely …—were not revised to account for Caden N. until December 2021, three months after defendant’s trial … . Even then, the CJI [Criminal Jury Instructions] Committee advised in an explanatory note that “Caden N. did not explicitly discuss whether the standard for impairment for purposes of a prosecution for [vehicular] manslaughter in the second degree was also the standard to be applied in a prosecution for only VTL 1192 (4),” and that, “until an appellate court decides otherwise,” a trial court may “decide to apply Caden N.’s definition of impairment for a vehicular manslaughter or assault charge and the impaired ‘to any extent’ definition for a VTL driving while impaired by the use of a drug or combination of [substances] charge” … . People v Ambrosio, 2026 NY Slip Op 00824, CtApp 2-17-26

Practice Point: Here defense counsel was not ineffective for failing to request a jury charge which was not clearly applicable to the offense.

 

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DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO CHALLENGE THE INITIAL POLICE CONTACT WITH THE DEFENDANT AS UNJUSTIFIED; THE MATTER WAS REMITTED FOR A SUPPRESSION HEARING (FOURTH DEPT).

The Fourth Department, ordering a suppression hearing, determined defense counsel was ineffective in failing to challenge whether the police were justified in initiating the encounter with the defendant based upon a vague and ambiguous 911 call:

We conclude that the record establishes that defense counsel could have presented a colorable argument that the police officer’s actions were either not justified at the inception of the encounter or otherwise not reasonably related in scope to the circumstances presented (see De Bour, 40 NY2d at 215). Here, the officer’s encounter with defendant was based on a 911 call from a security guard at a nearby restaurant who said that he observed a man who had what “looks like a black phone, but then again . . . looks like a gun.” The security guard provided a description of the individual, and the guard said that he could not be sure, but that he thought the man might have been part of a dispute that had taken place at the restaurant earlier in the day. Notably, County Court held a Huntley hearing at which the arresting officer testified, but the testimony of the officer as well as his body cam footage, which was admitted at the hearing, presented a ” ‘close [question] under [the] complex De Bour jurisprudence’ ” regarding the legality of the police encounter … . People v Wyatt, 2026 NY Slip Op 00720, Fourth Dept 2-11-26

Practice Point: Defense counsel was deemed ineffective for failing to challenge the initial encounter between the defendant and the police. The remedy was remittal for a suppression hearing.​

 

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DEFENDANTS-ATTORNEYS WAIVED A DEFENSE WITHOUT THEIR CLIENTS’ CONSENT; THE LEGAL MALPRACTICE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the motion to dismiss the legal malpractice complaint should not have been granted. Defendants-attorneys represented Park West. A driver working for Park West was in an accident and both Park West and the driver were sued. The contract between the driver and Park West indicated the driver was an independent contractor. The attorneys, however, conceded the driver was an employee and Park West settled. The essence of the legal malpractice action was the attorneys’ failure to raise the independent-contractor-defense to Park West’s liability. The First Department noted that the evidence indicated the driver may in fact have been Park West’s employee, but that cannot be decided at the motion-to-dismiss stage. The only relevant question for the motion to dismiss is whether the complaint stated a cause of action for legal malpractice:

The motion court improperly held that plaintiffs failed to state a cause of action for legal malpractice against defendants. To state a claim for legal malpractice, a “plaintiff must show that (1) the attorney was negligent; (2) the attorney’s negligence was a proximate cause of plaintiff’s losses; and (3) plaintiff suffered actual damages” … . Moreover, an “attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if but for the attorney’s negligence the plaintiff would have succeeded on the merits of the underlying action or would not have sustained actual and ascertainable damages” … .

Here, plaintiffs argue that but for defendants’ negligence in waiving Park West’s independent contractor defense in the underlying action, without their consent and without disclosing conflicts in their representation of several defendants in the action, they would not have been compelled to settle the action, and they would not have been held vicariously liable for [the driver’s] negligence. Park W. Exec. Servs., Inc. v Gallo Vitucci & Klar, LLP, 2026 NY Slip Op 00428, First Dept 1-29-26

Practice Point: The question at the motion-to-dismiss stage is whether the complaint states a cause of action, not whether the elements of the cause of action can be proven. Here the defendants-attorneys’ waiver of a defense without their client’s consent stated a cause of action for legal malpractice. Whether that defense would hold up at trial is not relevant to a dismissal for failure state a cause of action.​

 

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ADMINISTRATION FOR CHILDREN’S SERVICES PROPERLY HELD IN CIVIL CONTEMPT FOR FAILING TO COMPLY WITH AN ORDER TO PLACE THE CHILD IN TRADITIONAL FOSTER CARE (SECOND DEPT).

The Second Department, modifying Family Court, determined the petitioner (Administration for Children’s Services) was properly held in civil contempt upon the motion of the attorney for the child for failure to comply with the court order to place the child in a traditional foster home. However, the Second Department deemed the imposition of a fine of $250 per day inappropriate:

“‘A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court'” … . Upon a finding of civil contempt, “‘Judiciary Law § 773 . . . provides for two types of awards: one where actual damage has resulted from the contemptuous act in which case an award sufficient to indemnify the aggrieved party is imposed, and one where the complainant’s rights have been prejudiced but an actual loss or injury is incapable of being established'” … . “In the second situation, the fine is limited to $250, plus the complainant’s costs and expenses” … . By contrast, “where there is actual loss or injury the statute does not provide for a general $250 fine, single or multiple. It calls instead for an assessment that will indemnify aggrieved parties” … .

Here, the Family Court correctly determined that the child had suffered actual injury as a result of the contemptuous act. * * *

* * * [T]he court should have imposed a “reasonably certain compensatory fine” that is “properly related to the scope of the injury” … .

… “‘Accordingly, ‘[a]ny penalty imposed is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court’s mandate or both'” … . Under these circumstances, where the Family Court specifically invoked the petitioner’s “inconsisten[cy] and carelessness,” the fine of $250 per day of noncompliance appears to represent an improper attempt to punish the contemnor rather than compensate the injured party … . Matter of Emily M. (Joyce G.), 2026 NY Slip Op 00377, Second Dept 1-28-26

Practice Point: Here the Administration for Children’s Services, upon the motion of the attorney for the child, was held in civil contempt for failing to comply with an order to place the child in traditional foster care.

 

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PROVIDING COUNSEL WITH “MEANINGFUL NOTICE” OF THE CONTENTS OF A NOTE FROM THE JURY DOES NOT NECESSARILY REQUIRE READING THE NOTE INTO THE RECORD VERBATIM; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, affirming the convictions, over a two-justice dissent. determined the judge did not commit a mode of proceedings error when responding to two notes from the jury. The dissenters argued the notes should have been read into the record “verbatim:”

In People v O’Rama (78 NY2d 270 [1991]), the Court of Appeals in addressing the “notice” requirement contained in CPL 310.30, held that “notice” means “meaningful” notice to counsel of the “actual specific content of the jurors’ request” … . * * *

O’Rama suggested that upon receipt of a written jury request, the note should be marked as a jury exhibit before the jury is recalled into the courtroom and read into the record in the presence of counsel. After the contents are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. Finally, the court should read the communication in open court in the presence of counsel, the defendant and the jury … . However, failure to strictly follow this suggested procedure does not always result in a violation of the notice requirements of CPL 310.30 or rise to the level of a mode of proceedings error, as the designation of a mode of proceedings error is “reserved for the most fundamental flaws. The error must go to the essential validity of the process and be so fundamental that the entire trial is irreparably tainted” … . * * *

… [S]trict adherence to the “best practice” procedure suggested in O’Rama is not required so long as the fundamental purpose of CPL 310.30 is achieved, which is providing counsel with meaningful notice of the contents of a jury note so that counsel has an opportunity to provide meaningful input to the court’s response. People v Vilella, 2026 NY Slip Op 00097, First Dept 1-13-26

Practice Point: The majority held that providing counsel with “meaningful notice” of the contents of a jury not did not require reading the note into the record verbatim. There was a two-justice dissent.

 

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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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HERE DEFENDANT’S NON-LAWYER HUSBAND REPRESENTED HER AT THE FORECLOSURE TRIAL; THE FACT THAT THE HUSBAND HAD A POWER OF ATTORNEY AUTHORIZING HIM TO ACT ON HIS WIFE’S BEHALF DID NOT AUTHORIZE HIM TO PRACTICE LAW; ALTHOUGH REPRESENTATION BY A NON-LAWYER DOES NOT RENDER THE PROCEEDINGS A “NULLITY,” HERE THE DEFENDANT WAS PREJUDICED BY HER HUSBAND’S REPRESENTATION AND THE JUDGE ERRED BY NOT ALLOWING THE HUSBAND TO TESTIFY; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the judgment of foreclosure and ordering a new trial, determined defendant was prejudiced by her non-attorney husband’s representation of her in the trial. Although the husband, John Chae, had a power of attorney authorizing him to act on his wife’s behalf, the power of attorney did not authorize him to practice law. In addition, Supreme Court erred by not allowing the husband to testify:

“‘New York law prohibits the practice of law in this State on behalf of anyone other than himself or herself by a person who is not an admitted member of the Bar, regardless of the authority purportedly conferred by execution of a power of attorney'” … . “The designation as an attorney-in-fact under General Obligations Law §§ 5-1502A-N does not confer upon a designated agent the right to provide representation as an attorney-at-law, and ‘cannot be read to displace the provisions of Judiciary Law § 478′” … .

In this case, none of the exceptions to Judiciary Law § 478 apply. Moreover, John Chae’s marriage to the defendant did not permit him to appear pro se on her behalf … . “As a general rule, the fact that a party has been represented by a person who was not authorized or admitted to practice law under the Judiciary Law—whether a disbarred attorney or a person practicing law without a license—does not create a ‘nullity’ or render all prior proceedings void per se” … . Here, however, the record demonstrates that the defendant was prejudiced as a result of being represented by an unauthorized attorney at the trial … . Further, the Supreme Court erred in precluding the defendant from testifying at the trial (see CPLR 321[a]). Ventus Props., LLC v Mo Chae, 2025 NY Slip Op 07429, Second Dept 12-31-25

 

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THE PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE JUSTIFICATION DEFENSE REQUIRED REVERSAL AFTER TRIAL AND DISMISSAL OF THE INDICTMENT (WITHOUT PREJUDICE) (SECOND DEPT).

The Second Department, reversing defendant’s conviction and dismissing the indictment (without prejudice), determined the prosecutor erroneously failed to explain the justification defense to the grand jury. Although defendant had a knife, there was evidence the victim had a gun and was the initial aggressor:

If the District Attorney fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment (see id. § 210.35[5] …). “‘[A] prosecutor should instruct the [g]rand [j]ury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'” … . “Where the evidence before the grand jury supports it, the charge on justification must be given” … .

“In determining whether the evidence supports a justification defense, the record must be viewed in the light most favorable to the defendant” … . Here, a surveillance video shown to the grand jury indicated that the defendant approached Graves inside a store while holding a knife. Nevertheless, when viewing the evidence in the light most favorable to the defendant, there is a reasonable view of the evidence that the defendant was not the initial aggressor, Graves pointed a gun at the defendant, the defendant stabbed Graves to defend himself from the imminent use of deadly physical force against him, and the defendant could not safely retreat (see Penal Law § 35.15[2][a] …). People v Mead, 2025 NY Slip Op 07412, Second Dept 12-31-25

Practice Point: Where the evidence viewed in the light most favorable to the defendant satisfies the criteria for a defense to the offense, the prosecutor must so instruct the grand jury. Failure to do so renders the grand jury proceeding defective and the indictment must be dismissed, even after a conviction at trial.

 

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DEFENDANT WAS NOT COERCED INTO PLEADING GUILTY; THE JUDGE’S DESCRIBING THE POSSIBLE RANGE OF SENTENCING, PLEADING GUILTY TO AVOID A HARSHER SENTENCE, THE JUDGE’S COMMENTING ON THE STRENGTH OF THE PEOPLE’S CASE, AND COUNSEL’S TELLING DEFENDANT THE SENTENCE WOULD LIKELY BE HARSHER AFTER TRIAL, DID NOT AMOUNT TO “COERCION” (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, over a dissent, determined defendant’s guilty plea was knowing, intelligent and voluntary, the dissent disagreed:

[D]espite the court’s initial inclination to end the plea proceeding and allow the matter to proceed to trial and its indication that it could not accept a plea that was not voluntary, the court continued with the plea proceeding after defendant emphatically insisted that the plea “is voluntary . . . is voluntary . . . is voluntary” and that the court was not pressuring him. Defendant was given another opportunity to consult with defense counsel and then indicated that he wanted to proceed with the plea, and the court thereafter asked again whether defendant, with intent to cause serious physical injury, did in fact cause such injury to the victim by repeatedly stabbing her, to which defendant answered in the affirmative. The court then followed up one more time by asking defendant whether he was telling the truth when he answered that prior question, to which defendant again responded in the affirmative. Therefore, contrary to the dissent’s suggestion that the law required more of the court, the record reflects that the court “properly conducted such [a further] inquiry and that defendant’s responses to the court’s subsequent questions removed [any] doubt about [his] guilt” with respect to the previously negated elements of assault in the first degree … . …

n any event, we conclude that defendant’s challenge to the voluntariness of the plea lacks merit. Indeed, defendant’s contention that the court coerced him into accepting the plea is belied by the record because, during the plea colloquy, defendant denied that he had been threatened or otherwise pressured into pleading guilty and, moreover, defendant specifically denied that the court had pressured him into taking a plea … . Further, contrary to defendant’s assertion, “[a]lthough it is well settled that ‘[a] defendant may not be induced to plead guilty by the threat of a heavier sentence if [the defendant] decides to proceed to trial,’ ” we conclude that the statements made by the court ” ‘amount to a description of the range of the potential sentences’ rather than impermissible coercion” … . The fact that defendant ” ‘may have pleaded guilty to avoid receiving a harsher sentence does not render his plea coerced’ ” … . Likewise, contrary to defendant’s assertion, we conclude on this record that the court “did not coerce defendant into pleading guilty merely . . . by commenting on the strength of the People’s evidence against him” … . Contrary to defendant’s related assertion, we conclude that “defense counsel’s advice that [defendant] was unlikely to prevail at trial and that he would likely receive a harsher sentence if convicted after trial . . . does not constitute coercion” … . People v Freeman, 2025 NY Slip Op 07125, Fourth Dept 12-23-25

Practice Point: Consult this decision for insight into what does and does not amount to “coercion” in the context of a guilty plea.

 

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