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DEFENDANTS’ RELIANCE ON THEIR ATTORNEY’S STATEMENT HE WOULD HANDLE THE MATTER, THE FACT THAT THE SEVERELY INJURED INFANT PLAINTIFF, FOR WHOM DEFENDANTS WERE CARING, REQUIRED EXTRAORDINARY MEDICAL CARE AND FUNDRAISING, AND THE EXISTENCE OF A MERITORIOUS DEFENSE, WARRANTED GRANTING THE MOTION TO VACATE THE DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to vacate the default judgment (CPLR 5015(a)(1)) should have been granted. Defendants were under the impression their attorney was handling the case, they had a valid reason for failing to be more proactive in dealing with their attorney, and they had a meritorious affirmative defense:

Here, the defendants claimed that, upon receiving notice of the action in August 2023, they each contacted their family attorney, with whom the grandmother and the family had an 18-year relationship, and who was representing the mother in a child support proceeding against the plaintiff. The family attorney agreed to handle this matter. In a series of text messages to the defendants, the family attorney gave the impression that he was handling the matter and again indicated that such was the case when he met the defendants in person in reference to the child support proceeding. …

During these proceedings, the defendants were caring for the infant, who had suffered a brain injury and had been in the intensive care unit for approximately two months and required machines to help her breathe. The infant’s care involved hyberbaric and stem cell treatments from doctors in Louisiana and Arizona and fundraising to pay for her care.

The defendants each hired their current attorneys and promptly moved to vacate the March 2024 [default] order, alleging that the defendants’ reliance upon the representations of the family attorney constituted a reasonable excuse for their default and further alleging … an affirmative defense … .

… [U]nder the particular circumstances of this case, the defendants’ conduct in relying upon the representations of the family attorney did not constitute willful default or neglect … . Further, the defendants’ responsibilities in caring for the infant provided a reasonable explanation for their failure to be more proactive in their dealings with the family attorney and in the management of this action … . Cross v Lee, 2026 NY Slip Op 04924, Second Dept 8-12-26

Practice Point: Here defendants’ reliance on their attorney’s assurances he was handling the matter, the severity of the infant plaintiff’s injuries (the defendants were caring for the infant), and the existence of a meritorious defense, warranted granting defendants’ motion to vacate the default judgment (CPLR 5051(a)(1)).

 

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IN THE FACE OF EVIDENCE PLAINTIFF DID NOT INTEND TO ABANDON THE ACTION, IT WAS AN ABUSE OF DISCRETION TO DISMISS THE COMPLAINT FOR FAILURE TO MEET THE DEADLINE FOR FILING A NOTE OF ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dismissal of the complaint because plaintiff failed to timely file a note of issue was an abuse of discretion. Plaintiff had communicated with defendant within the 90-day period about discovery owed plaintiff. If defendant had complied with the discovery requests, plaintiff could have timely filed:

“[A] plaintiff [who] has been served with a 90-day notice pursuant to CPLR 3216(b)(3) . . . must comply with the notice by filing a note of issue or by moving, before the default date, either to vacate the 90-day notice or to extend the 90-day period” … . “In general, if a plaintiff fails to comply with the demand, to avoid the sanction of dismissal, the plaintiff is required to demonstrate a justifiable excuse for the delay and the existence of a potentially meritorious cause of action” … . However, CPLR 3216 is “extremely forgiving, and, [w]hile the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for his or her delay, and a meritorious cause of action[,] such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal” … .

Here, there was no evidence that the defendant was prejudiced by the plaintiff’s delay in filing the note of issue after expiration of the 90-day period, that there was a pattern of persistent neglect and delay in prosecuting the action, or that there was any intent by the plaintiff to decline to proceed with discovery or otherwise abandon the action … . * * *

Had the defendant complied with either of the plaintiff’s first two emailed requests for outstanding discovery, the plaintiff could have timely filed the note of issue. This evidence negated any inference that the plaintiff intended to abandon the action and, inasmuch as the defendant contributed to the plaintiff’s inability to timely file a note of issue, the defendant’s assertion of prejudice from the delay was disingenuous … . Salik v Atlantis Operating, LLC, 2026 NY Slip Op 04970, Seccond Dept 8-12-26

Practice Point: CPLR 3216 is “extremely forgiving.” Here it was an abuse of discretion to dismiss the complaint for failure to meet the deadline for filing a note of issue.

 

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A CONSIDERABLE NUMBER OF DAYS DEVOTED TO MOTION PRACTICE SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE; DEFENDANT’S 30.30 SPEEDY-TRIAL MOTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s speedy trial (CPL 30.30) motion should have been denied because considerable time-periods should not have been charged to the People:

The court should have denied defendant’s CPL 30.30 motion to dismiss the indictment. The court should not have charged the People for the 98-day period during which codefendant delayed serving a copy of his omnibus motion on the People. This time is excludable as time attributed to “pretrial motions,” including “the period during which such matters are under consideration by the court” (CPL 30.30[4][a] …).

The court likewise should have excluded the 42-day period between the date of its decision on codefendant’s omnibus motion and the date on which the matter was adjourned for the People to file their certificate of compliance (COC) … . The People were entitled to “reasonable time to prepare for hearings and trial after the court’s rulings on [the co]defendant’s omnibus motion” … . People v Page, 2026 NY Slip Op 04823, First Dept 7-30-26

Practice Point: Here days related to defense motion practice and preparation for hearings precipitated by rulings on defense motions should not have been charged to the People in a “speedy trial” analysis.

 

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THE JUDGE DID NOT MAKE THE REQUISITE “SEARCHING INQUIRY” BEFORE ALLOWING DEFENDANT TO REPRESENT HIMSELF; DECISION RESERVED AND MATTER SENT BACK (FOURTH DEPT).

The Fourth Department, reserving decision on this appeal of the denial of a suppression motion, determined the trial judge did not conduct the requisite “searching inquiry” before allowing the defendant to represent himself:

As defendant contends and the People correctly concede, the court failed to conduct a sufficient inquiry into his request to represent himself. “[A]n application to proceed pro se must be denied unless defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel . . . To this end, trial courts must conduct a ‘searching inquiry’ to clarify that defendant understands the ramifications of such a decision” … . In other words, a “searching inquiry” is required to “warn defendant of the risks inherent in representing [themself]” and to “apprise [them] of the value of counsel” … , including that “going pro se would be ‘extraordinarily dangerous’ and ‘that most defendants who represent themselves are not successful’ ” … . “When a record lacks the requisite ‘searching inquiry’ or fails to measure up to the prescribed standards, a waiver of the right to counsel will be deemed ineffective” … .

Here, the court erred in allowing defendant to proceed pro se inasmuch as it did not “undertake a searching inquiry . . . to insur[e] that . . . defendant [was] aware of the dangers and disadvantages of proceeding without counsel” … . We conclude that “the tainted proceeding had an adverse impact on defendant” … and, therefore, we hold the case, reserve decision, and remit the matter to Supreme Court for further proceedings in accordance with our prior determination … . People v Ocasio, 2026 NY Slip Op 04595, Fourth Dept 7-24-26

Practice Point: Consult this decision for a discussion of the “searching inquiry” a judge must engage in before allowing a defendant to represent himself.

 

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PRESENTING THE GRAND JURY WITH EVIDENCE SUBSEQUENTLY RULED IRRELEVANT DID NOT AMOUNT TO PROSECUTORIAL MISCONDUCT WARRANTING DISMISSAL OF THE INDICTMENT (FOURTH DEPT). ​

The Fourth Department, in a full-fledged opinion by Justice Curran, reversing County Court, determined the prosecutor’s presentation of evidence to the grand jury which was subsequently ruled irrelevant did not amount to misconduct warranting dismissal of the indictment. Defendant drove his car at high speed in poor road conditions. The car left the road, crashed and burned. The two passengers were killed. Defendant was charged with criminally negligent homicide. Driving at a high speed in poor road conditions, without more, will not support criminally negligent homicide. The prosecutor presented evidence of a blood test which indicated defendant had used marijuana to meet the criteria for criminally negligent homicide. When County Court determined the marijuana evidence was irrelevant because there was no proof the marijuana-use affected defendant’s ability to operate the car, County Court dismissed the indictment. The Fourth Department found that the presentation of the irrelevant evidence was not “prosecutorial misconduct” which justified dismissal of the indictment:

… [W]e conclude that the court erred in granting defendant’s renewed motion on the ground that the grand jury proceedings were rendered defective due to prosecutorial misconduct. At the outset, it is worth noting what is not at issue here. Specifically, we note that there is no evidence in this case that the People, in introducing the cannabinoid evidence to the grand jury, intentionally engaged “in an over-all pattern of bias and misconduct” that was “pervasive” and “willful” (Thompson, 22 NY3d at 699 [internal quotation marks omitted]). There also is no evidence that, in introducing the challenged evidence, the prosecutor was “motivated by bias or a desire to deceive the grand jury” (id. at 706) or that there was any “nefarious design to deliberately cause unfairness to defendant” (People v Wisdom, 23 NY3d 970, 973 [2014]).

Rather, the court’s conclusion that the People had impaired the integrity of the grand jury proceedings through misconduct was predicated on its determination that the People had improperly introduced the cannabinoid evidence—evidence that was later found to be irrelevant. In so concluding, the court failed to explain how the People’s reliance on the allegedly flawed cannabinoid evidence met the dismissal standard set forth by the Court of Appeals in the aforementioned cases. Indeed, it is quite clear from those decisions that a mere error or flaw by a prosecutor in presenting evidence does not, in fact, meet the demanding test for establishing entitlement to dismissal due to the impairment of the integrity of the grand jury proceedings … . People v Stencel, 2026 NY Slip Op 04574, Fourth Dept 7-24-26

Practice Point: Consult this opinion for a discussion of the nature of prosecutorial misconduct at the grand jury stage which mandates dismissal of the indictment, not the case here.

 

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WHEN DEFENDANT TOLD THE JUDGE “MY LAWYER IS INEFFECTIVELY COUNSELING ME” THE JUDGE MADE NO INQUIRY INTO THE BASIS FOR THE STATEMENT AND SHUT DOWN ANY FURTHER STATEMENTS BY THE DEFENDANT; THE MAJORITY CONCLUDED THAT WAS REVERSIBLE ERROR; THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing the conviction and ordering a new trial, over a dissent, determined the judge’s failure to conduct any inquiry when defendant requested new counsel was reversible error:

A defendant may be entitled to new counsel “upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel … . The defendant’s request “may not be used merely to delay the orderly administration of justice” … . It must be supported by “specific factual allegations of serious complaints about counsel” … . Once the court determines that defendant’s request is not “merely to delay” but is “seemingly serious,” the court is required to make a minimal inquiry before exercising its discretion to grant or deny substitution of counsel … .

However, before the court can determine whether the defendant’s allegations are sufficiently serious to warrant minimal inquiry, it must at the very least allow the defendant the opportunity to make the allegations … . Thus, this Court has repeatedly held that a defendant is entitled to a new trial where the trial court “denied [a] request for new counsel without making any inquiry into the substance of his request, and without giving defendant any opportunity to explain the basis for his request” … . * * *

In this case, after jury selection was complete and as the jurors were about to enter the courtroom, defendant told the court, “I feel I’m not getting a fair trial. I’m not even prepared for a trial. My lawyer, my lawyer is ineffectively counseling me . . . . [a]nd also representing me.” The court responded that “You made your record” and “I’m not relieving your counsel. Don’t interrupt me.” Defendant tried to continue his request and stated, “I asked for a lab report. He gave me a field test.” The courtinterjected and instructed defendant to “not interrupt me” and warned that “[i]f you do this kind of behavior, particularly if the jury is here, it’s going to be a problem, okay. So just get yourself under control.” The court’s admonition effectively foreclosed any further discussion. People v Cooper, 2026 NY Slip Op 04561, First Dept 7-23-26

Practice Point: When a defendant tells the judge he is not being effectively represented by counsel, the judge should make at least a minimal inquiry. Here the failure to make any inquiry into the basis of defendant’s statement was deemed reversible error.

 

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MOTHER’S BEHAVIOR DID NOT AMOUNT TO A FORFEITURE OF HER RIGHT TO COUNSEL IN THIS VISITATION PROCEEDING (THIRD DEPT).

The Third Department, reversing the order of Family Court in this visitation proceeding, determined mother was denied her right to counsel. After attempts to assign counsel failed, the judge essentially forced mother to proceed without an attorney:

Pursuant to Family Ct Act § 262 (a), respondents in visitation proceedings have a right to be represented by counsel and, if they are financially unable to obtain counsel, have the right to have counsel assigned by the court … . * * *

“Here, the record is clear that the mother did not wish to proceed pro se, but was forced to do so” … ; as such, “the record . . . does not indicate that [she] made a knowing and intelligent waiver of [her] rights to be represented by counsel” … . It appears from the record that Family Court determined that the mother had forfeited her right to counsel. Indeed, “[a] litigant may forfeit the right to assigned counsel through a persistent pattern of threatening, abusive, obstreperous, and uncooperative behavior with successive assigned counsel” … . However, such a forfeiture is an “extreme, last-resort” based upon “egregious conduct by a [respondent]” … . Simply put, while we are certainly mindful of the difficult position Family Court was in, “the record fails to clearly reflect that the mother engaged in the sort of egregious conduct that would justify a finding that she forfeited her right to assigned counsel” … . Matter of Carlene R. v Heather A., 2026 NY Slip Op 04015, Third Dept 6-25-24

Practice Point: In a Family Court visitation proceeding a party’s waiver of the right to counsel must be explicit. Here it was clear mother did not wish to go forward pro se.

 

 

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DEFENSE COUNSEL PURSUED A REASONABLE ALTERNATIVE STRATEGY IN MOVING TO SUPPRESS DEFENDANT’S STATEMENTS THAT DID NOT REQUIRE AN INVESTIGATION INTO DEFENDANT’S MENTAL HEALTH AND SUBSTANCE ABUSE; THEREFORE DEFENSE COUNSEL’S PURPORTED FAILURE TO INVESTIGATE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissenting opinion, determined defense counsel’s purported failure to investigate defendant’s mental health and substance abuse history in order to challenge the voluntariness of defendant’s statements to police did not constitute ineffective assistance of counsel. Counsel’s decision to employ an alternative strategy was reasonable:

Defendant’s assigned counsel later moved to suppress defendant’s statements. At a pretrial hearing, counsel argued that defendant provided those statements while operating under a reasonable belief that he would be given immunity in exchange for his information, and therefore the statements were involuntary. Counsel supported that argument with a variety of evidence, including, among other things, defendant’s refusal to offer any statements until he could speak with an assistant district attorney (ADA), an unrecorded conversation with an ADA, and a note in the police file in defendant’s handwriting stating that he would need immunity and payment in exchange for his information. Counsel also relied upon defendant’s Miranda waiver form, on which he crossed out “defendant” and wrote in “C.I.,” for confidential informant. Defendant also testified at the suppression hearing that he had been offered immunity by the ADA during the unrecorded conversation.  * * *

In 2019, while his direct appeal was still pending, defendant moved to vacate the judgment pursuant to CPL 440.10. He argued that his trial counsel was ineffective for failing to investigate his history of mental health disorders and substance abuse. The court ordered a hearing, at which defendant’s trial counsel testified. Counsel asserted that although he was aware of defendant’s mental health and substance abuse history, defendant “had given [counsel] such a clear picture” of what happened that “was supported by documentary evidence” and that in counsel’s “50 years of practicing [he had] never had a case where [he had] seen, or known of a case where [he had] seen that a person” who shared defendant’s mental health diagnosis successfully suppress a statement on that ground. People v Fernandez, 2026 NY Slip Op 03915, CtApp 6-23-26

Practice Point: Although defendant’s mental health and substance abuse history may have been used to argue his statements to police were not voluntary, defense counsel felt that argument would fail and pursued a reasonable alternative strategy which did not require a mental-health and substance-abuse investigation. Defense counsel was therefore not “ineffective.”

 

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WHEN DEFENSE COUNSEL REALIZED THE STIPULATION SHE HAD SIGNED EFFECTIVELY EQUATED POSSESSION OF THE LAPTOP WITH POSSESSION OF THE CHILD PORNOGRAPHY FOUND ON THE LAPTOP SHE MOVED FOR A MISTRIAL ARGUING SHE HAD PROVIDED INEFFECTIVE ASSISTANCE; THE APPELLATE DIVISION AND THE COURT OF APPEALS AGREED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, affirming the Appellate Division, and agreeing with defense counsel’s own trial argument that her signing the stipulation constituted ineffective assistance, determined the stipulation in this child pornography case essentially equated possession of the laptop with possession of child pornography found on the laptop. Defendant asserted that he found the laptop in the garbage and that any child pornography was placed there by someone else:

Defense counsel’s decision to sign paragraphs 4 and 5 of the stipulation … deprived the defendant of meaningful representation. On their face, paragraphs 4 and 5 may be read to eliminate the crimes’ mens rea requirements—the very elements on which the defense theory rested—contrary to the court’s instruction that to convict the defendant of possessing the CSAM [child sexual abuse material], the jury had to conclude beyond a reasonable doubt that he committed the requisite “affirmative acts.” So understood, the stipulation would have undermined the defendant’s core contention that he possessed the laptop without knowing it contained the CSAM. … [P]aragraphs 4 and 5, which provide that “whoever possessed” the videos “promoted” a sexual performance by a child “with knowledge of the character and content of the videos,” and that “whoever possessed” the images did so “knowingly,” went further than was necessary … . … [T]he record reveals no other strategic reason for agreeing to those paragraphs’ vital legal concessions. * * *

… [I]n the specific circumstances of this case, where the defendant conceded physical possession of the laptop and the images in the unallocated space were repeatedly described as “on the laptop” by the parties, the witnesses, and the stipulation itself, the stipulation could have allowed the jury to conclude that the defendant’s physical possession of the laptop equated to his knowing possession of the images in the unallocated space. As for the video counts, although defense counsel contended that the defendant had never possessed the videos at all, the theory of the People’s case was that the same person shared and downloaded both the videos and images. Thus, the stipulation’s concession as to the image counts could well have tainted the jury’s deliberations on video counts.  People v Guerra, 2026 NY Slip Op 03905, CtApp 6-18-26

Practice Point: Consult this opinion for insight into what the People must prove to demonstrate the possessor of a laptop “possesses” child pornography found on the laptop. Merely viewing is not possessing. The People must prove defendant “exercised dominion and control” over the pornography by downloading or printing it for example. Here the defendant asserted he found the laptop in the garbage and any pornography found on the laptop was not put there by him.

 

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DEFENDANT HAD REQUESTED NEW COUNSEL AND ARGUED THE JUDGE DID NOT MAKE THE PROPER INQUIRY BEFORE DENYING THE REQUEST; DEFENDANT PLED GUILTY REPRESENTED BY HIS ORIGINAL COUNSEL; THE FOURTH DEPARTMENT RULED THE DEFENDANT “ABANDONED” HIS “INVOLUNTARY PLEA” ARGUMENT BY REMAINING REPRESENTED BY THE SAME ATTORNEY AT THE TIME OF THE PLEA; THE COURT OF APPEALS RULED DEFENDANT NEVER ABANDONED THE “INVOLUNTARY PLEA” ARGUMENT AND THE LINE OF FOURTH DEPARTMENT DECISIONS TO THE CONTRARY SHOULD NOT BE FOLLOWED (CT APP).

The Court of Appeals, reversing the Appellate Division and invalidating a line of Fourth Department decisions, determined the defendant did not waive the argument that his guilty plea was not voluntarily entered. Defendant had argued the trial judge did not make the required findings after defendant requested new counsel. The Fourth Department ruled that argument was abandoned because defendant pled guilty while represented by his original defense attorney. The Court of Appeals held the defendant had never waived the “involuntary plea” argument:

The Fourth Department’s holding, the most recent in a line of cases to the same effect, is wrong for several reasons. First, as the Appellate Division acknowledged, a claim challenging the voluntariness of a plea survives even a valid appeal waiver … . A challenge to voluntariness cannot be extinguished because the same counsel about whom a defendant has complained, unsuccessfully, continued to represent the defendant at plea and sentencing. Second, in any event, these circumstances do not constitute waiver of defendant’s voluntariness claim … . Waiver “occurs when a defendant intentionally and voluntarily relinquishes or abandons a known right that would otherwise survive a guilty plea” … . Here, the fact that defendant pleaded guilty while represented by the same attorneys does not evince an intentional choice to abandon review of the voluntariness of his plea. Defendant contends that his guilty plea was an effort to mitigate the harm resulting from the court’s denial of his request for new counsel, not an abandonment of his request. To the extent that the Appellate Division relied on the fact that, during the plea colloquy, defendant did not renew his complaints about counsel, his silence does not indicate waiver. Finally, the Fourth Department’s line of cases adopting this erroneous rule originates in People v Hobart (286 AD2d 916 [4th Dept 2001]), which cited no case law or authority for its rule, nor does it explain the rule’s origins. The other Departments have not adopted that rule. People v Kelley, 2026 NY Slip Op 03904, CtApp 6-18-26

Practice Point: Here defendant requested new counsel and the request was denied. Then defendant pled guilty while represented by his original counsel. Defendant did not waive his “involuntary plea” argument by pleading guilty with his original counsel. The line of Fourth Department decisions which held a guilty plea in this context abandons defendant’s “involuntary plea” argument is no longer valid. The abandonment or waiver of an “involuntary plea” argument must be explicit.

 

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