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DEFENDANT’S COMPLAINTS ABOUT THE ACTIONS OF DEFENSE COUNSEL WERE NOT SPECIFIC OR SERIOUS ENOUGH TO WARRANT AN INQUIRY BY THE JUDGE; THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined defendant had not made specific and serious allegations about the behavior of his attorney which were sufficient to warrant an inquiry by the judge:

… [D]efendant argues that the complaints contained in his letter were factually specific and serious enough to require a minimal inquiry. He points to his accusations that defense counsel was not working in his best interest; disregarded his request to visit, “even via [v]ideo”; hung up on him; disrespected him and his wife; was prolonging the proceedings; and told him to accept a plea even though he was “in fact innocent.” Contrary to defendant’s contention, these statements did not constitute “specific factual allegations of ‘serious complaints about counsel’ ” … . Defendant’s assertions that counsel was not working in his best interest, was prolonging the proceedings, and was advising him to take a plea were too general and conclusory to require a minimal inquiry. There are simply no facts elucidating these allegations that would have signaled to the trial court that a serious conflict emerged between defendant and his counsel.

… The seriousness of defendant’s allegation that counsel failed to visit him was undermined by other statements in the letter, which clearly indicated that counsel and his private investigator were communicating with defendant. Moreover, defendant failed to explain how defense counsel allegedly disrespected him and his wife. Nor did he provide any context regarding defense counsel allegedly hanging up on him. For instance, it is entirely unclear whether defense counsel intentionally or inadvertently hung up on defendant or whether defense counsel simply hung up because the conversation had ended. … [D]efendant’s complaints … lacked sufficient elaboration to signal to the trial court that the complaints were serious enough to warrant minimal inquiry … . People v Fredericks, 2025 NY Slip Op 01011, CtApp 2-20-25

Practice Point: The nature of defendant’s complaints about the behavior of defense counsel were not specific or serious enough to trigger the need for an inquiry by the judge. There was a three-judge dissent.

 

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MOTHER’S OBJECTIONS TO THE CHILD SUPPORT ORDER WERE NEVER SERVED ON FATHER’S COUNSEL; THE SUBSEQUENT ORDER GRANTING THE OBJECTIONS IS VOID (THIRD DEPT). ​

The Third Department, reversing Family Court, determined that the mother’s objections to the Support Magistrate’s child support order, which Family Court granted, should have been served on father’s counsel. Under the circumstances of the case, the failure to serve counsel rendered the related court orders void:

Family Ct Act § 439 (e) directs that “[a] party filing objections shall serve a copy of such objections upon the opposing party, who shall have [13] days from such service to serve and file a written rebuttal to such objections.” This provision does not address the issue of whether service on an attorney representing a party constitutes service on the opposing party. Where a method of procedure is not prescribed, Family Ct Act § 165 (a) provides that “the provisions of the [CPLR] shall apply to the extent that they are appropriate to the proceedings involved … .” CPLR 2103 specifically pertains to the service of papers and provides that “papers to be served upon a party in a pending action shall be served upon the party’s attorney” (CPLR 2103 [b]). Accordingly, “service on an opposing party represented by counsel requires service on the attorney, not the party” … . The record supports that counsel was not served with the objections, and in fact only became aware of them upon receipt of Family Court’s order granting same. * * * … [C]ounsel never obtained a copy of the objections, and thus never responded to same. Matter of Andersen v Bosworth, 2025 NY Slip Op 01029, Third Dept 2-20-25

Practice Point: Here the failure to serve father’s counsel with mother’s objections to the child support order, which were subsequently granted by Family Court, rendered the order granting the objections void.

 

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THE EVIDENCE WAS LEGALLY SUFFICIENT TO DEMONSTRATE DEFENDANT INTENDED TO STEAL TWO CANS OF RED BULL WHEN HE ENTERED THE CVS; THE DISSENT ARGUED THE EVIDENCE OF FELONY BURGLARY WAS LEGALLY INSUFFICIENT, NOTING THAT THE PROSECUTOR COULD HAVE CHARGED PETTY LARCENY OR TRESPASS, THEREBY SAVING THE STATE THE MILLION DOLLARS IT COST TO INCARCERATE THE HOMELESS, MENTALLY ILL AND DRUG-ADDICTED DEFENDANT FOR AN ATTEMPT TO STEAL ITEMS WORTH $6 (CT APP).

The Court of Appeals affirmed defendant’s burglary conviction rejecting the “legally insufficient evidence” argument. In a dissenting opinion, Judge Wilson (Judge Halligan concurring), argued the evidence was legally insufficient. Judge Wilson wrote “no evidence in the case could have led a jury to conclude beyond a reasonable doubt that Mr. Williams intended to steal the two Red Bulls” when he entered the CVS:

From the dissent:

Two cans of Red Bull cost about $6. Seven years of incarceration costs anywhere between $800,000 and $4 million, depending on the location within New York State … . For attempting to take two cans of Red Bull from a CVS, Raymond Williams was convicted of third-degree burglary, a felony, and sentenced to three and a half to seven years in prison. Mr. Williams was a perpetual petty shoplifter with substance abuse and mental health problems, so perhaps this result makes sense to someone. It does not to me.

Mr. Williams’s story is not uncommon. For much of his life, he has struggled with homelessness and drug addiction. Both factors disproportionately increase the risk of being caught up in the criminal justice system and sentenced to spend time in prison. Mr. Williams had previously been found guilty of many minor shoplifting offenses, including from other CVS stores. His problems were addressed by sentences of incarceration and probation, not treatment. * * *

Putting both psychiatric and fiscal wisdom aside, although it was within the discretion of prosecutors to charge Mr. Williams with felony burglary instead of, for example, petty larceny or trespass, the trial evidence was legally insufficient to convict him of burglary. No evidence in the case could have led a jury to conclude beyond a reasonable doubt that Mr. Williams intended to steal the two Red Bulls. I would therefore reverse his conviction. People v Williams, 2025 NY Slip Op 00901, CtApp 2-18-25

Practice Point: Consult the dissent for a strong argument for prosecutorial discretion in shoplifting cases, especially where the defendant is homeless, mentally ill and addicted to drugs. Here the defendant was sentenced to three and a half to seven years in prison for attempting to steal two cans of Red Bull from a CVS (burglary third).

 

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IMPROPER CROSS-EXAMINATION OF PLAINTIFF ABOUT HIS STATUS AS A DEFENDANT IN A PENDING LAWSUIT WARRANTED GRANTING PLAINTIFF’S MOTION FOR A MISTRIAL (SECOND DEPT).

The Second Department, reversing the denial of plaintiff’s motion for a mistrial, determined plaintiff was improperly cross-examined about his status as a defendant in a pending lawsuit:

… Supreme Court should have granted the plaintiff’s motion for a mistrial based upon improper cross-examination of the plaintiff about a pending lawsuit against him relating to his alleged failure to pay for an unrelated medical procedure. Where a lawsuit has not resulted in an adverse finding against a witness, counsel should not be permitted to ask the witness if he or she has been sued since the fact that a lawsuit has been commenced, in and of itself, has little or no probative value with regard to credibility … . Here, the court improvidently permitted defense counsel to cross-examine the plaintiff as to whether he was the defendant in a pending lawsuit alleging nonpayment, since the lawsuit had not resulted in an adverse finding against the plaintiff and the fact that the lawsuit had been commenced, in and of itself, had little to no probative value with regard to the plaintiff’s credibility … . Moreover, defense counsel’s reference to an allegation that the plaintiff had taken $200,000 in insurance proceeds that was not forwarded to medical providers and, after being precluded from ascertaining from the plaintiff whether that allegation was true, defense counsel’s reference to “someone” taking $250,000 that “didn’t belong to them,” prejudiced the plaintiff, who was the sole eyewitness on his behalf. Drayton v Putnam Hosp. Ctr., 2025 NY Slip Op 00845, Second Dept 2-13-25

Practice Point: The cross-examination of the plaintiff about his status as a defendant a pending lawsuit was improper and warranted a mistrial.

 

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PLAINTIFF DID NOT SUFFER A “SERIOUS INJURY” WITHIN THE MEANING OF THE INSURANCE LAW IN THE UNDERLYING PEDESTRIAN-VEHICLE ACCIDENT CASE; THEREFORE PLAINTIFF COULD NOT HAVE SUCCEEDED ON THE MERITS OF THAT ACTION; DEFENDANT ATTORNEY WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE INSTANT LEGAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant attorney was entitled to dismissal of the legal malpractice action because plaintiff could not have succeeded in the underlying traffic accident case. Plaintiff, a pedestrian, was struck by a vehicle. The traffic-accident case was dismissed because plaintiff did not sustain a “serious injury” within the meaning of the Insurance Law:

“A plaintiff seeking to recover damages for legal malpractice must establish that (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” … . “Even if a plaintiff establishes the first prong of a legal malpractice cause of action, the plaintiff must still demonstrate that he or she would have succeeded on the merits of the action but for the attorney’s negligence” … . “To succeed on a motion for summary judgment dismissing a legal malpractice action, a defendant must present evidence in admissible form establishing that at least one of the essential elements of legal malpractice cannot be satisfied” … .

Here, in support of its motion, the defendant submitted evidence demonstrating that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. The defendant thus established … that the plaintiffs would not have succeeded on the merits of the underlying personal injury action … . Dodenc v Dell & Dean, PLLC, 2025 NY Slip Op 00650, Second Dept 2-5-25

Practice Point: An essential element of a legal malpractice action is that the plaintiff would have succeeded on the merits in the underlying action. Here the attorney demonstrated plaintiff did not sustain a serous injury within the meaning of the Insurance Law and, therefore, plaintiff would not have succeeded in the underlying traffic accident case.

 

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THE WARRANT REQUIRED THE SEIZED CELL PHONE BE “RETURNED TO THE COURT;” INSTEAD THE CELL PHONE WAS TURNED OVER TO A CYBERSECURITY CENTER WHICH CONDUCTED A FORENSIC EXAMINATION AND MEMORY EXTRACTION; DEFENSE COUNSEL’S FAILURE TO MOVE TO SUPPRESS THE INFORMATION GLEANED FROM THE CELL PHONE CONSTITUTED INEFFECTIVE ASSISTANCE; MANSLAUGHTER CONVICTION VACATED (FOURTH DEPT).

The Fourth Department determined defendant’s motion to vacate her manslaughter conviction on the ground of ineffective assistance of counsel should have been granted. The search of defendant’s cell phone far exceeded the scope of the warrant. The warrant required that the seized cell phone be “returned to the court.” Instead the phone was turned over to a cybersecurity and forensics center where a forensic examination and memory extraction was conducted. A considerable amount of trial evidence was gleaned from the cell phone. Defense counsel did not move to suppress the cell-phone evidence:

We agree with defendant that she was denied effective assistance of counsel inasmuch as defense counsel failed to properly move to suppress the evidence obtained from her cell phone. “[I]ndiscriminate searches pursuant to general warrants ‘were the immediate evils that motivated the framing and adoption of the Fourth Amendment’ ” … . A person’s cell phone now contains at least as much personal and private information as their home and, thus, indiscriminate searches of cell phones cannot be permitted … . As defendant correctly contends, the forensic examination and memory extraction of her cell phone’s contents exceeded the scope of the warrant, which only authorized OCSO to seize the cell phone and return it to the court … . Furthermore, the warrant failed to meet the particularity requirement inasmuch as it, inter alia, did not “specify the items to be seized by their relation to designated crimes” … . Thus, we conclude that defendant “established that a motion to suppress would likely be successful, and that defense counsel had no strategic or other legitimate explanation for not moving to suppress the evidence” … . People v Conley, 2025 NY Slip Op 00597, Fourth Dept 1-31-25

Practice Point: The Fourth Department noted that the search of a cell phone can reveal as much information as the search of a home. To be valid, a cell -phone search must be confined to the terms of the warrant, and the warrant must specify the items to be seized by their relation to the crimes.

 

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DEFENDANTS MOTION TO VACATE THE DEFAULT BASED UPON LAW OFFICE FAILURE AND PROOF OF A MERITORIOUS DEFENSE SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants motion to vacate the default judgment based upon law office failure should have been granted:

In support of the motion to vacate, defendants affirmed that they had retained former counsel and that he had informed them that he would file an answer, but his office failed to do so. However, they did not become aware of this failure until they were served with the default. Although defendants could have provided stronger support by way of an affirmation from former counsel to better substantiate their claim of law office failure, this is not required. Markedly, plaintiff’s submissions in support of his application for costs — included in the record before this Court — establish that his counsel’s office was aware that defendants were represented. In fact, plaintiff’s counsel’s billing records specifically name former counsel and set forth that he was “attorney for defendant[s].” These billing records further demonstrate that plaintiff’s counsel had conversed with former counsel and been informed that an answer was being prepared. These facts, in conjunction with the short duration between entry of default in July 2023 and the subsequent motion to vacate in September 2023, establish that plaintiff was not prejudiced by the delay, and that defendants’ failure to file an answer was the result of law office failure and not willfulness on the part of defendants … . * * *

“To establish the existence of a potentially meritorious defense, defendants needed only to make a prima facie showing of legal merit, as the quantum of proof needed to prevail on a CPLR 5015 (a) (1) motion is less than that required when opposing a summary judgment motion” … . In consideration of this minimal standard of proof, defendants’ sworn assertions that plaintiff fraudulently induced them to enter the contract and then breached the contract before any breach on their part establishes a potentially meritorious defense … . Darling v Fernette, 2025 NY Slip Op 00507, Third Dept 1-30-25

Practice Point: Consult this decision for the criteria for vacating a default judgment based upon law officer failure, and for demonstrating a meritorious defense to a breach of contract action.

 

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DURING SUMMATION THE PROSECUTOR REPEATEDLY ACCUSED DEFENDANT OF LYING, VOUCHED FOR THE CREDIBILITY OF THE COMPLAINANT AND MISSTATED CRITICAL EVIDENCE; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing defendant’s convictions and ordering a new trial, determined the attempted murder and burglary convictions were against the weight of the evidence and prosecutorial misconduct deprived defendant of a fair trial:

… [D]uring summation, the prosecutor, inter alia, repeatedly accused the defendant of lying, improperly vouched for the credibility of the complainant, and misstated the critical evidence to support the charge of attempted murder in the second degree. Indeed, the prosecutor repeatedly accused the defendant of lying on the witness stand by stating, among other things, that the defendant was “caught in a lie” and was being “less than truthful,” and that “[w]hen she thinks it is going to benefit her, she is quick to tell you a lie” … . The prosecutor also improperly stated that to believe the defendant’s version of the events, the jury would have to believe “that [the complainant] is lying about everything she told you, you have to believe she’s a complete liar,” that the police officers “are lying too,” and that “[e]veryone is out to get this defendant” … . Additionally, the prosecutor improperly vouched for the complainant’s credibility by repeatedly telling the jury that the complainant was, inter alia, “honest” and “telling the truth,” and that her testimony “was plausible and true” … . Further, the prosecutor misstated the critical evidence as to a doctor’s testimony regarding the depth of the stab wound to puncture the complainant’s chest cavity by stating that “at a minimum it would need to be a[n] inch or two to puncture someone’s chest cavity” … . Rather, the doctor estimated that the stab wound would have to be “about an inch” deep. As this evidence was critical to support the charge of attempted murder in the second degree, the prosecutor’s remarks were improper. People v Gallardo, 2025 NY Slip Op 00460, Second Dept 1-29-25

Practice Point: Here the prosecutor, in summation, accused defendant of lying, vouched for the credibility of the complainant, and misstated critical evidence. That was enough to warrant a new trial.

 

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EVEN THOUGH THE COOPERATIVE LANDLORD WON IN THE UNDERLYING LITIGATION AGAINST A SHAREHOLDER TENANT, THE LEASE PROVISION REQUIRING THE TENANT TO PAY ATTORNEY’S FEES REGARDLESS OF DEFAULT OR MERIT WAS UNENFORCEABLE AS UNCONSCIONABLE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the lease provision which provides for attorney’s fees regardless of default or merit unenforceable as unconscionable:

Because the lease provides for attorneys’ fees regardless of default or merit, in a dispute between a residential co-op [The Dakota] and a shareholder tenant [Fletcher] , we find this provision to be unenforceable as unconscionable … . The lease is not “silent as to whether such right is contingent upon the merits of plaintiff’s action” … , but explicitly provides for attorneys’ fees whenever the tenant sues The Dakota. This interpretation is not changed by the description of the fees as “reasonable” … . “Bearing in mind that agreements providing for payment of attorneys’ fees should be construed strictly” … , we will not rewrite the parties’ agreement simply because The Dakota prevailed in the underlying litigation … .”To enforce such a provision would produce an unjust result because it would dissuade aggrieved parties from pursuing litigation and preclude tenant-shareholders from making meaningful decisions about how to vindicate their rights in legitimate instances of landlord default” … . Kasowitz, Benson, Torres & Friedman, LLP v JPMorgan Chase Bank, N.A., 2025 NY Slip Op 00396, First Dept 1-28-25

Practice Point: A lease provision which requires a tenant to pay attorney’s fees regardless of default or merit is unconscionable and will not be enforced even where the landlord won the underlying litigation.

 

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DEFENDANT MADE A DISCOVERY DEMAND FOR “LINE OF DUTY” DOCUMENTS RELEVANT TO THE DEFENSE; THE PEOPLE DID NOT ADDRESS THE DEMAND; ON APPEAL THE PEOPLE ARGUED FOR THE FIRST TIME THAT THERE WERE NO SUCH DOCUMENTS; BY FAILING TO ADDRESS THE DEMAND IN THE MOTION COURT, THE PEOPLE WERE DEEMED TO HAVE CONCEDED THE EXISTENCE OF THE DOCUMENTS; THE CERTIFICATE OF COMPLIANCE WAS THEREFORE ILLUSORY; INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing the conviction and dismissing the indictment, determined the certificate of compliance (COC) with the People’s discovery obligations was illusory and defendant’s motion to dismiss on speedy trial grounds should have been granted:

Officer Soto testified before the grand jury that the defendant was sitting in a parked car when the plainclothes officers approached him, that Officer Soto did not identify himself as a police officer, that he could not recall whether Officer Cruz identified himself as a police officer, that a struggle ensued over some suspected marijuana in the defendant’s hand, and that the defendant drove away, causing injury to each officer. The indicted charges included aggravated assault upon a police officer and assault in the second degree, alleging, among other things, that the defendant caused serious physical injury to Officer Soto and physical injury to Officer Cruz. * * *

The defendant … identified the failure to disclose any “line of duty” paperwork, despite the defendant’s request for the same, and the facts that both officers were out “line of duty” for a period of time due to their injuries and Officer Soto ultimately retired due to his injuries. The defendant asserted that the “line of duty” paperwork would include documents relating to the independent medical examinations by the New York City Police Department District Surgeon used to certify that the officers were, in fact, injured and unable to return to full duty, as well as written statements by the officers regarding the manner in which their injuries occurred. * * *

On appeal, the People assert that there is no indication that any “line of duty” paperwork exists. In opposition to the defendant’s motion, however, the People did not refute the defendant’s assertion that the paperwork existed. “Normally what is not disputed is deemed to be conceded” … . Moreover, as the People bear the burden of establishing that they did, in fact, exercise due diligence and make reasonable inquiries to ascertain the existence of material and information subject to discovery prior to filing the COC, it was incumbent on the People to address the defendant’s assertion regarding the “line of duty” paperwork in opposing his motion. People v Serrano, 2025 NY Slip Op 00338, Second Dept 1-22-25

Practice Point: If the People ignore a defendant’s discovery demand for relevant documents, they will be deemed to have acknowledged that the documents exist rendering the COC illusory.

 

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