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THE PEOPLE’S FAILURE TO TURN OVER TO THE DEFENSE A VIDEO CONTAINING IMPEACHMENT MATERIAL PRIOR TO FILING A CERTIFICATE OF COMPLIANCE RENDERED THE CERTIFICATE OF COMPLIANCE AND THE STATEMENT OF READINESS ILLUSORY; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment on speedy trial grounds, in a full-fledged opinion by Justice Pritzker, determined the People were required to turn over a child advocacy center (CAC) video before filing a certificate of compliance (COC) and statement of readiness (SOR). The CAC video was not turned over until 20 days before trial:

… [T]he People conceded that the CAC video contained impeachment evidence based upon certain statements made by the victim … , and also that the CAC video had been turned over by the CAC to law enforcement and, as such, was in the People’s possession as of January 22, 2020 … . Despite this, the CAC video was not turned over to defendant until September 1, 2021, 20 days before trial, even though the People filed an earlier COC and SOR in October 2020. Specifically, the COC dated October 16, 2020 referenced an index detailing the materials that had been disclosed to defendant as of that date. This index reveals two compliance reports, one dated February 28, 2020 and the other dated October 1, 2020. As relevant here, the February 28, 2020 compliance report lists a document titled “CAC Chain of Custody – 01.22.2020.pdf” as having been turned over to defendant. There is no dispute that, while this chain of custody form for the CAC video was included in discovery, the video itself was not. * * *

… [H]ere, we are faced with a situation where the People certified, allegedly in good faith, that “the prosecutor has disclosed and made available all known material and information subject to discovery” … , despite knowing full well that they were intentionally withholding the CAC video. As such, we find that the People did not file the October 2020 COC in good faith as they did not make “all known material and information subject to discovery” available to defendant … . Further compounding their error, the People did not give defendant any notice of this withholding, either by withholding the CAC video and requesting a protective order … in the first instance, or, later, giving defendant notice that the CAC video was purportedly being withheld so as not to disclose any identifying information of the victim … . … [B]ecause we find that the October 2020 COC and SOR were illusory, the People did not validly announce readiness for trial until September 2021, which the People concede would be outside of the applicable six-month CPL 30.30 time frame. Thus, this Court must dismiss the indictment … . People v Mazelie, 2025 NY Slip Op 05849, Third Dept 10-23-25

Practice Point: Here the People’s failure to turn over impeachment evidence before filing the certificate of compliance rendered the certificate illusory and required dismissal of the indictment.

 

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DEFENDANT RAISED QUESTIONS ABOUT THE VOLUNTARINESS OF HIS PLEA TO FIRST DEGREE MURDER SUFFICIENT TO WARRANT A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant had raised questions about the voluntariness of his plea to first degree murder (for killing his parents) which required a hearing on his motion to vacate his plea. Defendant was sentenced to life imprisonment without parole. In his motion to vacate his plea, defendant alleged his attorneys told him that the death penalty for first degree murder was going to be overturned and thereafter his sentence could be reduced. Defendant also alleged his guilty plea was induced in part by his cousin’s offer to pay him $10,000 if he pled guilty and renounced any claim to his parents’ estate:

According to defendant, after he had received the offer of payment, he remained reticent to accept the plea offer; however, by his telling, consideration of that payment together with his averment as to trial counsel’s misadvice of a potential reduced sentence ultimately persuaded him to accept the offer to plead guilty and be sentenced to life without parole. In support of that account, motion counsel and defendant’s investigator recounted trial counsel’s representation that defendant’s initial objection to accepting the plea offer diminished once the $10,000 payment had been offered. In support of defendant’s motion, he presented further evidence that $10,000 was paid to him after he entered his plea by way of two separate $5,000 checks, one of which was provided by his cousin. The evidence of that payment and the corresponding account that it influenced defendant’s deliberations as to whether to accept the plea, considered alongside the misadvice that he was purportedly provided, create an issue of fact as to whether he was subjected to something more “than the type of situational coercion faced by many defendants who are offered a plea deal” … .

All told, we find that defendant’s submissions in support of his motion are sufficient to raise an issue of fact warranting a hearing with respect to deficiencies in his representation … and the effect on the voluntariness of his plea … . …  With respect to both his claims, defendant bears the burden of establishing his entitlement to relief by a preponderance of the evidence (see CPL 440.30 [6]). As to his contention of deficient representation, defendant will bear the burden of proving that he was misadvised about the potential to have his sentence reduced in the future if he took the People’s plea offer and, but for that misadvice, there is a reasonable probability that he would have chosen to proceed to trial … . … [A]t this juncture the question “is whether defendant has made sufficient allegations to warrant an evidentiary hearing, not whether defendant has satisfied his burden of proof” … . People v Mower, 2025 NY Slip Op 05851, Third Dept 10-23-25

Practice Point: Consult this decision for insight into the allegations and proof which will be sufficient to require a hearing on whether defendant’s guilty plea was voluntarily entered in the context of a post-appeal motion to vacate the judgment of conviction.

 

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HERE THE OFFICE OF COURT ADMINISTRATION’S (OCA’S) BLANKET ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE RE: THE FOIL REQUEST FOR COMMUNICATIONS BETWEEN OCA AND JUDGES WAS REJECTED; ALTHOUGH UPON REMAND THE PRIVILEGE MAY BE SHOWN TO APPLY TO INIDVIDUAL, IDENTIFIED DOCUMENTS, THE OCA DID NOT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP WITH ALL THE JUDGES SUCH THAT A BLANKET ASSERTION OF THE PRIVILEGE WAS APPROPRIATE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, determined that the Office of Court Administration (OCA) was not entitled to a blanket assertion of attorney-client privilege in response to a FOIL request by the NY Civil Liberties Union (NYCLU) that followed the leak of a 2021 internal OCA memorandum proposing a narrow reading of a recent court decisions which was widely distributed to judges:

… “[W]hether a particular document is or is not protected is necessarily a fact-specific determination, most often requiring in camera review” … . Without having identified or produced any documents for in camera review, OCA cannot assert a blanket privilege over the entire universe of potentially responsive documents. In reaching this conclusion, we do not suggest that Counsel’s Office could never establish such a relationship. But we decline to recognize the sweeping, ex ante privilege that OCA claims here.

We hold that OCA has failed to meet its preliminary burden of establishing an attorney-client relationship with all UCS judges. Should OCA continue to assert this privilege over any specific documents identified in response to the limited request upon which the parties have now agreed, the court on remittal should assess whether such documents fall within the asserted exemption, including by in camera review as necessary … . Matter of New York Civ. Liberties Union v New York State Off. of Ct. Admin., 2025 NY Slip Op 05784, CtApp 10-21-25

Practice Point: Here, in this FOIL case, the blanket assertion of the attorney-client privilege for communications between the Office of Court Administration (OCA) and all judges was rejected. Whether the privilege applies must be assessed in the context of a review of the individual documents identified in the request.

 

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EVIDENCE DEFENDANT’S AND THE CODEFENDANT’S ATTORNEYS SHARED THE SAME OFFICE AND WORKED CLOSELY TOGETHER REQUIRED A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION; DEFENDANT ARGUED HE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL BY A CONFLICT OF INTEREST (THIRD DEPT).

The Third Department, reversing County Court, determined a hearing was required on defendant’s motion to vacate his conviction on the ground that his attorney was ineffective because of a conflict of interest between his attorney and the codefendant’s attorney. The two attorneys (Reilly and Roberts) have the same address and there was evidence that they worked closely together, even if they were not members of the same firm:

… [W]hen “an ineffective assistance of counsel claim is premised upon a perceived conflict of interest, the law draws a distinction between actual and potential conflicts” … . First, “[a]n actual conflict exists if an attorney simultaneously represents clients whose interests are opposed and, in such situations, reversal is required if the defendant does not waive the actual conflict” … . The same is true for attorneys associated with the same firm simultaneously representing clients in a criminal matter … . Alternatively, where a potential conflict exists, reversal is only required where “a defendant shows that a potential conflict actually operated on the conduct of [the] defense” … . * * *

… County Court … recognized that it was undisputed that Reilly and Roberts maintained the same address for their law practice. Each of the affidavits in support further reflected that the attorneys gave the impression that they were associated in the same law firm or that they had worked closely with each other. Both defendant and the codefendant acknowledged that they were not advised of a potential conflict of interest, and our review of the record fails to reveal any consent or waiver by defendant for such alleged conflicts. While it is true that defendant failed to provide an affidavit from either attorney, or explain why he was unable to obtain same, this is not automatically fatal to his motion — particularly where many of the facts are corroborated in the record … . This is particularly true considering that the codefendant alleged his speedy trial challenge was waived by Roberts to allow defendant to accept a plea and be sentenced, demonstrating that Reilly and Roberts had been at least aware of each other’s strategy in resolving the charges against their respective client. Yet, there exists a stark contrast of the sentences between defendant, who received 12 years of incarceration with 5 years of postrelease supervision, and the codefendant, who allegedly received time served. These differences are not explained in the record before us, and give rise to questions of fact about whether the relationship between Reilly and Roberts may have operated on the defense by impairing the best strategy for defendant … . People v Rasul, 2025 NY Slip Op 05722, Third Dept 10-16-25

Practice Point: Defendant moved to vacate his conviction on the ground he was deprived effective assistance of counsel because of a conflict of interest. There was evidence his and the codefendant’s attorneys shared the same address and worked closely together. The nonrecord evidence of a potential conflict of interest required a hearing.

 

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DEFENSE COUNSEL’S MISUNDERSTANDING OF THE ELEMENTS OF A CHARGED OFFENSE RESULTED IN THE PRESENTATION OF EVIDENCE BY THE DEFENDANT WHICH PROVED THE COMMISSION OF THE OFFENSE; DEFENSE COUNSEL WAS INEFFECTIVE; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective for failing to understand the nature of one of the criminal charges and presenting evidence which proved defendant’s commission of the charged offense. “Penal Law § 120.05(7) provides that a person is guilty of assault in the second degree when “[h]aving been charged with or convicted of a crime and while confined in a correctional facility, . . . with intent to cause physical injury to another person, he causes such injury to such person or to a third person” … . Defendant presented evidence he intended to punch another inmate but struck a corrections officer, thereby proving all the elements of the offense:

… [T]he record reveals that defense counsel’s trial strategy rested on the erroneous theory that defendant could not be found guilty of the charged offense if it could be proved that the correction officer was not the intended target of the assault. At trial, defense counsel called his client to testify. Defendant testified that while incarcerated, he became involved in an altercation with another inmate. He explained that during the encounter, he threw a “sucker punch” at that inmate, but in so doing, struck the correction officer instead. Defendant averred that the correction officer was not his intended target.

During summation, defense counsel compounded this error by incorrectly stating the required elements of Penal Law § 120.05(7) and declaring that in order to find defendant guilty of the charge, it must be proved that defendant intended to hit the correction officer. However, proving that the intended target of the assault was the correction officer is not a material element of the crime charged. Thus, counsel’s defense strategy constituted an admission to the jury of the elements necessary to prove the assault in the second-degree count (see Penal Law § 120.05[7]). Moreover, defense counsel’s argument to the court that he did not believe that the prosecution could amend its theory based on defendant’s testimony demonstrated yet another critical misunderstanding, of settled New York law that pertained to the entire defense strategy … . People v Calderon, 2025 NY Slip Op 05755, First Dept 10-16-25

Practice Point: Here, defense counsel’s failure to understand the elements of a charged offense constituted ineffective assistance, resulting in reversal and a new trial.​

 

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DEFENDANT WAS PROSECUTED AND CONVICTED BY A SPECIAL DISTRICT ATTORNEY WHO DID NOT MEET THE RESIDENCY REQUIREMENTS IN THE COUNTY LAW; THE ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL; THE INDICTMENT WAS PROPERLY DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Fourth Department, determined the court was without authority to appoint a special district attorney who did not meet the residency requirements in the County Law. The defendant, who was convicted, raised the issue for the first time on direct appeal. The indictment was dismissed:

Defendant was charged in Orleans County with various counts of larceny based on allegations that he improperly sold a vehicle that was given to him for repairs and retained the proceeds. The Orleans County District Attorney moved to be disqualified from the case due to his relationship with the alleged victim. County Court granted the application and appointed a special district attorney pursuant to County Law § 701 (1) (a). That statute provides that when the district attorney is disqualified from acting in a particular case, “a superior criminal court in the county wherein the action is triable may . . . appoint some attorney at law having an office in or residing in the county, or any adjoining county, to act as special district attorney during the absence, inability or disqualification of the district attorney and such assistants as he or she may have.”

It is undisputed that the special district attorney did not have an office in or reside in Orleans County or any adjoining county and therefore did not satisfy the statute’s residency requirement. Although defendant received correspondence during the course of the prosecution that listed addresses for the special district attorney located in Erie County—which does not adjoin Orleans County—defendant did not challenge the special district attorney’s appointment or otherwise raise the issue before the trial court. After defendant was convicted, however, he raised the issue on direct appeal. The Appellate Division agreed with defendant that the court exceeded its authority by appointing a special district attorney who did not satisfy the residency requirement and dismissed the indictment on this ground … .  People v Callara, 2025 NY Slip Op 05739, CtApp 10-16-25

Practice Point: Here defendant was prosecuted and convicted by a special district attorney who did not meet the residency requirements in the County Law. The issue was first raised on appeal. The appellate court properly dismissed the indictment because the lower court did not have the authority to appoint a special district attorney in violation of the residency provisions of the County Law.

 

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DEFENDANT WAS NOT UNDULY PREJUDICED BY CODEFENDANT’S ATTORNEY’S SUMMATION-ARGUMENT THAT DEFENDANT WAS A SHOOTER AND THE CODEFENDANT WAS NOT; THE TRIAL EVIDENCE DID NOT POINT TO THAT CONCLUSION AND THE JURY WAS INSTRUCTED THAT SUMMATIONS ARE NOT EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming the Fourth Department, determined that the trial judge properly denied the defendant’s motion to sever the trials of the codefendants. The charges stemmed from a drive-by shooting in which two guns were fired. The trial evidence did not demonstrate defendant’s lack of involvement. In summation the codefendant’s attorney argued defendant was one of the shooters and the codefendant was not:

Where counsel for a codefendant essentially functioned as “a second prosecutor” and elicited damaging evidence against the defendant, we have held that severance was required based on the “compelling prejudice” to the defendant … . No similar degree of prejudice was created by codefendant’s closing argument here.

… [D]efendant raised the specter of a potential irreconcilable conflict between the defenses prior to trial, but apart from the comments made in summation, the defenses were remarkably consistent in their primary focus on discrediting the eyewitness. Although Bordies’ [the codefendant’s] argument that the evidence supported the conclusion that defendant was guilty was diametrically opposed to defendant’s claim of innocence, this type of discord emerging between codefendants only in summation did not rise to the level of an irreconcilable conflict for purposes of severance in these particular circumstances.

Moreover, the trial court properly instructed the jury that the attorneys’ arguments were not evidence and should not be considered as evidence when they judged the facts. That being so, and given that the jury is presumed to have followed the court’s instructions … , any conflict raised solely by counsel’s arguments could not have formed the basis of the jury’s verdict. In sum, there was no “undue” prejudice to defendant. People v Everson, 2025 NY Slip Op 05738, CtApp 10-16-25

Practice Point: Consult this opinion for insight into when the severance of codefendants’ trials is required and when it is not.

 

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THE PEOPLE DID NOT DEMONSTRATE THEY EXERCISED DUE DILIGENCE IN BRINGING A POLICE OFFICER TO COURT TO TESTIFY AT A PRETRIAL HEARING; THE 33-DAY DELAY WAS UNREASONABLE AND CHARGEABLE TO THE PEOPLE; DEFENDANT’S SPEEDY TRIAL MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined defendant’s speedy trial motion should have been granted and the indictment was dismissed. A 33-day delay in having a police officer come to court to testify at a pretrial hearing was deemed unreasonable and chargeable to the People:

The People announced readiness in July 2021 and, subsequently, a combined Huntley and Mapp hearing was held on December 8, 2021. After two officers from the Rochester Police Department testified at that hearing, the prosecutor stated that a third officer was “currently not allowed to come to court due to an ongoing investigation by the Attorney General’s Office.” The prosecutor said that he was unsure of “who” was telling the officer “not to come to court.” The court thus adjourned the hearing and, ultimately, the officer testified on January 10, 2022, i.e., 33 days later.

… The People failed to establish that they exercised due diligence, i.e. ” ‘credible, vigorous activity’ to make the witness available” … . People v Beason, 2025 NY Slip Op 05598, Fourth Dept 10-10-25

Practice Point: Here a 33-day unexplained delay in bringing a police officer to court to testify at a pretrial hearing was deemed unreasonable and chargeable to the People.

 

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AN ATTORNEY SHOULD BE DISQUALIFIED UNDER THE ADVOCATE-WITNESS RULE WHEN THE ATTORNEY’S TESTIMONY IS NECESSARY TO PROVE ISSUES IN DISPUTE, NOT THE CASE HERE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the husband’s attorney, Smith, should not have been disqualified on the ground he would be called as a witness at trial. The appellate division determined Smith’s testimony was not relevant to the financial issues in the divorce action. Therefore Smith should not have been disqualified on the basis that his testimony would be necessary at trial:

The advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, but are not binding authority for courts in determining whether a party’s attorney should be disqualified during litigation … . “Disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants. Disqualification denies a party’s right to representation by the attorney of its choice” … . In considering whether to disqualify counsel, the court must consider a litigant’s right to select his own counsel and the fairness and effect of disqualification in the particular factual setting … . Whether to disqualify an attorney rests in the sound discretion of the trial court … . However, an attorney should be disqualified only when his or her testimony is necessary to prove the issues in dispute … . The party seeking or supporting disqualification need not show that counsel’s continued representation would prejudice his or her client where the court finds that counsel’s testimony is necessary on his or her client’s behalf … . De Luca v De Luca, 2025 NY Slip Op 05146, First Dept 9-25-25

Practice Point: Here the proposed testimony by the attorney was not necessary to prove issues in dispute. Therefore the attorney should not have been disqualified.

 

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PLAINTIFF’S COUNSELS “AFFIRMATION OF GOOD FAITH” WAS DEFICIENT; PLAINTIFF’S MOTION TO STRIKE AN AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to strike an affirmative defense was not supported by a sufficient “affirmation of good faith” from plaintiff’s counsel:

The court should have denied plaintiff’s motion to strike the answer because the affirmation of good faith from plaintiff’s counsel failed to comply with Uniform Rules for Trial Courts (22 NYCRR) § 202.20-f(b). Counsel states only perfunctorily that defendants failed to comply with four court orders for a deposition and that he contacted defendants on a certain date to confirm the deposition. Counsel failed to attest that he conducted an in-person or telephonic conference as required by 22 NYCRR 202.20-f(b) … . While counsel’s affirmation in support of the motion provides additional explanations, such as that “[they] made an effort” to contact defendants’ counsel and that “[their] office made [an] effort to confirm the deposition,” the affirmation fails to specify the mode of communications, by whom or to whom the communications were made, whether any messages were left, and whether counsel followed up with the attempt to confirm the deposition (see 22 NYCRR 202.7[a], [c] … . Servan v ES Bldrs. Group LLC, 2025 NY Slip Op 05184, First Dept 9-25-25

Practice Point: Consult this decision for the required contents of plaintiff’s counsel’s “affirmation of good faith” detailing efforts to resolve the issues with defendant’s counsel before moving to strike an affirmative defense. Here the affirmation was deemed deficient, requiring denial of the motion.

 

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