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CPLR 1021 DEFINES THE PROCEDURE FOR SUBSTITUTING A REPRESENTATIVE FOR A DECEASED PARTY; HERE THAT PROCEDURE WAS NOT FOLLOWED; THE JUDGE’S SUA SPONTE ORDER SUBSTITUTING THE EXECUTOR WAS A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proper procedure was not followed to substitute the executor of defendant’s estate for defendant. Therefore Supreme Court lacked any jurisdiction over the matter and did not have the power to grant defense counsel’s motion to substitute the executor:

… [T]he former counsel for the defendant purportedly moved on the defendant’s behalf, inter alia, pursuant to CPLR 3126. … Supreme Court, sua sponte, substituted Jared Pierre, as executor of the defendant’s estate, for the defendant nunc pro tunc and granted the motion purportedly made on the defendant’s behalf. The plaintiff appeals.

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a)” … . “[A]ny determination rendered without such a substitution is generally deemed a nullity” … . Further, “[t]he death of a party terminates the authority of the attorney for that person to act on his or her behalf” … .

“CPLR 1021 defines the procedural mechanisms for seeking a substitution of successor or representative parties, and for the dismissal of actions where substitutions are not timely sought” … . “A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction over the deceased party’s personal representative, and such a motion is not a mere technicality” … . Pierre v King, 2025 NY Slip Op 04028, Second Dept 7-2-25

Practice Point: The death of a party divests the court of jurisdiction over the matter. The procedure for substitution of a representative is explained in CPLR 1021 and must be followed.​

 

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ALTHOUGH A REVIEW OF POLICE DISCIPLINARY RECORDS BY A PANEL OF SENIOR PROSECUTORS IN RESPONSE TO A DEFENDANT’S DISCOVERY DEMAND IS NOT PERMITTED, THE REMEDY FOR SUCH A REVIEW IS NOT GRANTING DEFENDANT’S SPEEDY TRIAL MOTION; RATHER THE MATTER IS REMITTED FOR A REVIEW OF THE RECORDS BY THE TRIAL JUDGE AND A FINDING WHETHER THE PEOPLE EXERCISED DUE DILIGENCE; IF NOT, DEFENDANT’S SPEEDY TRIAL MOTION CAN BE CONSIDERED (FOURTH DEPT).

The Fourth Department, remitting the matter, held that the trial judge should review the police disciplinary records, which had been reviewed by a panel of senior prosecutors before they were provided to the defense, to determine if any relevant records were improperly withheld. If the People did not exercise due diligence, the certificate of compliance could be illusory and defendant might be entitled to a speedy-trial dismissal. The court noted that prior caselaw has ruled that the review of police disciplinary records by a panel of senior prosecutors is not permitted:

According to defendant, reversal is required because, as in People v Sumler (228 AD3d 1350, 1354 [4th Dept 2024]) and People v Rojas-Aponte (224 AD3d 1264, 1266 [4th Dept 2024]), the People used a screening panel of senior prosecutors to determine which police disciplinary records were related to the subject matter of the case, i.e., subject to discovery as impeachment material under CPL 245.20 (1) (k), and which police disciplinary matters did not relate to the subject matter of the case and thus not subject to automatic discovery. Although the People’s use of a screening panel in this case is not permitted under our prior case law, we do not agree with defendant that he is necessarily entitled to dismissal under CPL 30.30.

Instead, we hold the case, reserve decision, and remit the matter to County Court for the court to determine whether the People withheld any police disciplinary records that relate to the subject matter of the case. If the court determines that there were disciplinary records subject to disclosure that were not turned over to the defense in a timely manner, then the court must determine whether the People exercised due diligence in locating and disclosing those records … . People v Sanders, 2025 NY Slip Op 03884, Fourth Dept 6-27-25

Practice Point: A review by senior prosecutors to determine whether police disciplinary records should be provided to the defense is not permitted.

Practice Point: Where, as here, that review process was used, the remedy is remitting the matter for a review of the records by the trial judge and a finding whether the People exercised due diligence.

 

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IN THIS DIVORCE PROCEEDING, THE ATTORNEY FOR THE CHILDREN DID NOT ASCERTAIN THE POSITION OF THE ELDEST CHILD (WHO IS AUTISTIC, NONVERBAL AND HAS A SEIZURE DISORDER) AND DID NOT HAVE A THOROUGH UNDERSTANDING OF THE CHILD’S CIRCUMSTANCES; THE MOTION TO APPOINT A NEW ATTORNEY SHOULD HAVE BEEN GRANTED; IN ADDITION, GIVEN THE CONFLICTING CONTENTIONS AND THE ELDEST CHILD’S SPECIAL NEEDS, THE MOTION FOR A NEUTRAL OR INDEPENDENT FORENSIC EXAMINATION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce proceeding, determined the defendant’s motion to appoint a new attorney for two of the children and for a neutral or independent forensic examination should have been granted:

The parties were married in 2010 and have three children. The eldest child is autistic, is nonverbal, and has a seizure disorder. * * *

Pursuant to 22 NYCRR 7.2, the attorney for the child must zealously advocate the child’s position … . “In ascertaining the child’s position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances” … . “If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child . . . . The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests” … . An attorney for the child may substitute his or her judgment only when he or she is “convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child” … . In such circumstance, “the attorney for the child must inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position” … . “An [attorney for the child] should not have a particular position or decision in mind at the outset of the case before the gathering of evidence . . . . After an appropriate inquiry, it is entirely appropriate, indeed expected, that a[n attorney for the child] form an opinion about what action, if any, would be in a child’s best interest” … .

… [T]he defendant demonstrated that the attorney for the children failed to adequately ascertain the eldest child’s position to the extent of and in a manner consistent with the child’s capacities and failed to have a thorough knowledge of the child’s circumstances … .

… In any action for a divorce, the court may appoint an appropriate expert to give testimony with respect to custody or parental access (see 22 NYCRR 202.18). “In custody disputes, the value of forensic evaluations of the parents and children has long been recognized” … . “Although forensic evaluations are not always necessary, such evaluations may be appropriate where there exist sharp factual disputes that affect the final determination” … .

… Supreme Court improvidently exercised its discretion when it failed to direct a neutral forensic evaluation of the parties and the children, in light of, inter alia, the parties’ conflicting contentions and the eldest child’s special needs (see 22 NYCRR 202.18 …). Sandiaes v Sandiaes, 2025 NY Slip Op 03833, Second Dept 6-25-24

Practice Point: Consult this decision for an explanation of the role of the attorney for the child in divorce proceedings and an example of when the failure to direct an independent or neutral forensic examination in divorce proceedings is an abuse of discretion.

 

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PETITIONER PREVAILED IN THE FOIL PROCEEDING AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES; HOWEVER, PETITIONER WAS NOT ENTITLED TO LEGAL COSTS INCURRED IN PROSECUTING THE PETITIONER’S CLAIM FOR ATTORNEY’S FEES, SO-CALLED “FEES ON FEES” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the petitioner in this FOIL action prevailed and was entitled to attorney’s fees, the petitioner was not entitled to the fees incurred in seeking to recover the attorney’s fees, so-called “fees on fees:”

… [W]e find that the award of attorneys’ fees included amounts for legal fees and costs incurred by the petitioner in prosecuting its claim for an award of attorneys’ fees, or so called “fees on fees.” In New York, an attorney’s fee is “‘merely an incident of litigation and is not recoverable absent a specific contractual provision or statutory authority'” … . An award of fees on fees—fees for services performed to recover a fee award—also must be based upon a specific contractual provision or statute … . Here, “[g]iven the absence of unmistakably clear intent regarding the recovery of fees on fees [in Public Officers Law § 89(4)(c)], a right to recover those fees should not be implied” … .

As the petitioner is entitled to an award of attorneys’ fees, we remit the matter to the Supreme Court, Kings County, for a new hearing on the issue of the amount of reasonable attorneys’ fees arising solely from the prosecution of this proceeding, without the inclusion of legal fees and costs incurred in prosecuting the petitioner’s claim for an award of attorneys’ fees … . Matter of Aron Law, PLLC v New York City Fire Dept., 2025 NY Slip Op 03806, Second Dept 6-25-25

Practice Point: The prevailing party in a FOIL proceeding is entitled to attorney’s fees. However the petitioner is not entitled to “fees on fees,” i.e., legal costs incurred in prosecuting the claim for attorney’s fees.

 

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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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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S REPEATED CLAIMS, DURING SUMMATION, THAT EVERYTHING THE JURY HEARD FROM DEFENDANT WERE “LIES;” MANSLAUGHTER CONVICTION REVERSED AND NEW TRIAL ORDERED (CT APP).

The Court of Appeals, reversing defendant’s manslaughter conviction and ordering a new trial, in a full-fledged opinion by Judge Halligan, with two concurrences, determined defense counsel was ineffective for failing to object to the prosecutor’s claims during summation that defendant had repeatedly lied. Defendant had been abused by the victim and had asserted the justification defense. She testified she stabbed the victim once in fear for her life when the victim lunged at her, after he had raped her:

During summation, the prosecutor sought to undermine the defendant’s justification defense by suggesting that the defendant was not credible. In furtherance of that strategy, the prosecutor told the jury, “You never heard testimony that [the defendant] was in fear for her life. You never heard testimony that she was in fear of serious injury. Nothing.” As the People concede, this statement was false. The defendant had, in fact, testified that immediately before the stabbing she was “scared for my life,” and when subsequently asked whether she had testified that she was “afraid for your life,” the defendant responded “Yes, I was.”

Additionally, the prosecutor claimed in summation that the defendant had lied on the stand, using the word “lie” or “lies” fourteen times in total. Among other comments, the prosecutor claimed that “the only thing we can get out of [the defendant] are lies”; that her testimony was “unsubstantiated wild lies”; and that her testimony was “[m]eant to distract you from . . . the endless lies she has told you throughout this entire process.” The prosecutor also posed rhetorical questions along similar lines to the jury: “How could you possibly believe one thing that comes out of her mouth after all the lies she told you?” and “What wouldn’t she lie about?” Following summations, the court excused the jury and expressed concern about “[t]he repeated use of the word lies, which I also was going to limit if not eliminate,” but noted that it did not do so as the word “had been used throughout the trial without objection and I didn’t think it was proper for me to do it at this point.”

Defense counsel did not object either to the prosecutor’s flat misstatement of the defendant’s testimony that she feared for her life or to the repeated use of the word “lies.”  People v T.P., 2025 NY Slip Op 03642, CtApp 6-17-25

Practice Point: Consult this decision for insight into when a prosecutor can go too far in summation.

 

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A MISSING JURY-NOTE-RESPONSE TRANSCRIPT DOES NOT WARRANT REVERSAL UNLESS THE DEFENDANT SHOWS ENTITLEMENT TO A RECONSTRUCTION HEARING AND THE TRANSCRIPT CANNOT BE RECONSTRUCTED, NOT THE CASE HERE; WHEN A MOTION TO VACATE A CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS TURNS ON FACTS OUTSIDE THE RECORD, DENIAL WITHOUT A HEARING IS AN ABUSE OF DISCRETION (CT APP).

The Court of Appeals, remitting the matter for a hearing, in a full-fledged opinion by Judge Singas, determined (1) the absence of the transcript of a response to a jury note did not require reversal, and (2) defendant’s motion to vacate his conviction on ineffective-assistance grounds should not have been denied without a hearing:

Re: missing response-to-a-jury-note transcript:

… [A] missing transcript alone does not entitle a defendant to the extreme remedy of vacatur, but may entitle a defendant to a reconstruction hearing … . To be sure, if a defendant shows that they are entitled to a reconstruction hearing, and that the missing transcript at issue “cannot be reconstructed . . . , there must be a reversal” … . But defendant has not made that showing. Thus, the missing transcript does not warrant reversing defendant’s conviction.

Re: motion to vacate conviction, ineffective assistance:

Where a defendant moves to vacate their conviction under CPL 440.10, the court “must” decide “whether the motion is determinable without a hearing to resolve questions of fact” … . The court “may deny” the motion summarily under enumerated circumstances, including where purported facts essential to the motion are unsupported by “sworn allegations” that “substantiat[e] or tend[ ] to substantiate” those facts … , or where such a fact “is contradicted by a court record or other official document” and “there is no reasonable possibility that [the] allegation is true” … . We review a CPL article 440 motion’s summary denial for abuse of discretion … .

Defendant’s ineffective assistance claim cannot be decided without first resolving questions of fact. Defense counsel’s affirmation, together with the trial record, suggest that counsel may have lacked a strategic or other legitimate basis for one or more of his actions relating to eyewitness identification testimony at the heart of the People’s proof. Whether counsel in fact had such a basis for his conduct turns on factual information outside the present record that should be developed at an evidentiary hearing. People v Salas, 2025 NY Slip Op 03603, CtApp 6-12-25

Practice Point: A missing jury-note-response transcript does not require reversal unless the defendant shows entitlement to a reconstruction hearing and the transcript cannot be reconstructed.​

Practice Point: Where a motion to vacate the conviction on ineffective-assistance grounds turns on facts outside the record, here the strategic or other legitimate basis for counsel’s actions, it is an abuse of discretion to deny the motion without a hearing.

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO SUPPRESS CREDIT CARDS SEIZED DURING THE EXECUTION OF A SEARCH WARRANT WHICH WERE NOT WITHIN THE SCOPE OF THE WARRANT; THE INCRIMINATING NATURE OF THE CREDIT CARDS WAS NOT IMMEDIATELEY APPARENT (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective in failing to move to suppress credit cards seized during the execution of a search warrant. The credit cards were not within the scope of the warrant and there was no showing the incriminating nature of the credit cards was immediately apparent to the officer who seized them:

… [I]n an affirmation in support of the defendant’s CPL 440.10 motion, trial counsel averred that he “failed to consider that the seized credit cards were not described in the search warrant” and that he “failed to research the applicable law on exceptions to the warrant requirement.” Trial counsel admitted that his subsequent failure to move to suppress the credit cards in particular was not the result of a strategic decision and that he would have so moved if he had researched the law concerning the plain view exception to the warrant requirement. Thus, by his own admission, trial counsel’s failure to move for suppression of the credit cards due to their warrantless seizure cannot be characterized as a legitimate strategic decision … .

Defense counsel’s “investigation of the law, the facts, and the issues that are relevant to the case” is “[e]ssential to any representation, and to the attorney’s consideration of the best course of action on behalf of the client” … . Since the defendant established that trial counsel “did not fully investigate the case and did not collect the type of information that a lawyer would need in order to determine the best course of action” …  he demonstrated that he did not receive effective assistance of counsel. Thus, the Supreme Court should have granted the defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction on this basis and ordered a new trial. People v Goodluck, 2025 NY Slip Op 03343, Second Dept 6-4-25

Practice Point: Here defense counsel’s failure to investigate the law regarding the seizure of evidence outside the scope of a search warrant was deemed ineffective assistance requiring a new trial. Note that defense counsel, in support of defendant’s motion, submitted an affirmation admitting the failure to investigate and acknowledging that the omission was not a deliberate defense strategy.

 

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HERE DEFENDANT MADE A TIMELY REQUEST TO REPRESENT HIMSELF WHICH WAS DENIED WITHOUT ANY INQUIRY; DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion (three judges), reversing defendant’s convictions and ordering a new trial, determined that the judge’s failure to conduct an inquiry before denying defendant’s request to represent himself violated his constitutional right to self-representation:

A defendant has a constitutional right to proceed pro se (see US Const Amend VI; NY Const, art I, § 6; see also CPL 170.10 [6], 180.10 [5], 210.15 [5] [codifying a defendant’s constitutional right to self-representation]). Defendant invoked that right when he informed Supreme Court that he “would like to represent [him]self” at his upcoming trial. People v McIntyre (36 NY2d 10 [1974]) and its progeny required that the court make a searching inquiry into defendant’s unequivocal and timely request to proceed pro se, to determine whether that request was knowing, voluntary, and intelligent. Contrary to that rule, the court immediately denied defendant’s request without inquiry, and it expressly refused to consider any further request until the day of trial. The court’s failure to inquire into defendant’s request violated his constitutional right to self-representation. Therefore, we reverse and grant defendant a new trial.

On June 4, 2018, the parties appeared for trial. * * * This colloquy followed:

THE DEFENDANT: I’m going to go cocounsel.
THE COURT: I can’t hear you.
THE DEFENDANT: Cocounsel. I’m going to go cocounsel.
THE COURT: Cocounsel?
THE DEFENDANT: Yes.
THE COURT: What is that?
THE DEFENDANT: Meaning I’m going to represent myself in this case.
THE COURT: You mean pro se.
THE DEFENDANT: Yes. I will be going pro se at trial. I will be representing myself acting as my own.
THE COURT: You made no application before me.
THE DEFENDANT: I never said I wanted a trial by jurors. I never told this individual that I wanted a trial by jurors.
THE COURT: You know, Mr. Lewis, I’m assuming now you’re trying to play games with this court. . . . I’ll continue with this trial. If you want to speak to [defense counsel] about certain issues, I’ll hear [defense counsel] tomorrow morning.”

The following morning, the court invited defendant to raise any issues before proceeding with jury selection. Defendant asserted again that he did not want defense counsel to represent him, alleging that counsel was ineffective, had a conflict of interest, and was not working on his behalf. The court only responded, “[o]kay. Nicely done,” and continued the proceeding. People v Lewis, 2025 NY Slip Op 03011, CtApp 5-20-25

Practice Point: A defendant has a constitutional right to self-representation. A judge must conduct a “searching inquiry” upon a timely request.​

 

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DEFENDANT IN THIS GRAND LARCENY CASE WAS DETAINED BY STORE SECURITY GUARDS; DEFENSE COUNSEL FIRST LEARNED THE IDENTITY OF ONE OF THE STORE’S SECURITY PERSONNEL ON THE EVE OF THE HEARING TO DETERMINE WHETHER THE SECURITY GUARDS WERE LICENSED TO EXERCISE POLICE POWERS OR WERE AGENTS OF THE POLICE; THEREFORE DEFENSE COUNSEL’S REQUEST FOR AN ADJOURNMENT TO SUBPOENA THE STORE’S EMPLOYMENT POLICIES AND OTHER EMPLOYMENT INFORMATION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court and ordering a new “state action” hearing, determined defense counsel’s request for an adjournment to subpoena information about the store security guards’ employment should have been granted. The issue is whether the store security guards who detained the defendant in this grand larceny case were licensed to exercise police powers or acted as agents of the police. Defense counsel learned the name of the store’s lead investigator at the time of defendant’s detention on the eve of the state action hearing. The First Department noted that defense counsel could not properly subpoena the employment information without knowing the identities of the people involved:

… [W]e find that the court improvidently exercised its discretion in denying defense counsel a short adjournment. In denying the requested adjournment, the court found that defendant “could have done that [subpoena … records] a long time ago, maybe even when this appeal was being perfected.” On this appeal, the People make a similar argument that the court did not improvidently exercise its discretion in denying the adjournment because defense counsel could have subpoenaed the materials during the pendency of this appeal. The problem with these arguments is that this Court had already recognized that, without information about the identity of the officers involved in defendant’s arrest, defense counsel was not in a position to meaningfully subpoena records … .

Contrary to the court’s suggestion, this is not the situation where defense counsel failed to exercise due diligence. In fact, as we held, without knowing the names of the store security guards involved in defendant’s detention, defendant was in no better position to subpoena the employer material than when he filed his initial motion. Thus, it was only upon learning the identity of one member of the security team that the defense could meaningfully begin to investigate whether the security guards were state actors. People v Sneed, 2025 NY Slip Op 03026, First Dept 5-20-25

Practice Point: If a defendant is detained by store security guards, the detention may implicate constitutional protections if the security guards are licensed to exercise police powers or are agents of the police. The defense, therefore, may be entitled to a so-called “state action” hearing. To subpoena the appropriate store employment records, defense counsel is entitled to the identities of the security guards involved in defendant’s detention.

 

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