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DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF; THEREFORE THE JUDGE WAS NOT REQUIRED TO CONDUCT A SEARCHING INQUIRY TO DETERMINE WHETHER DEFENDANT’S REQUEST WAS KNOWING, VOLUNTARY AND INTELLIGENT; A TWO-JUSTICE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, determined he did not make an unequivocal request to represent himself. The two-justice dissent disagreed:

… [D]efendant did not unequivocally request to proceed pro se inasmuch as he only “ask[ed] to proceed pro se as an alternative to receiving new counsel,” thereby seeking to “leverage his right of self-representation in an attempt to compel the court to appoint another lawyer” … . Indeed, defendant repeatedly “made clear that he did not wish to proceed pro se,” and “couched [his requests] as a means to secure new counsel” … , including by stating that he had “no choice” but to represent himself if the court did not assign new counsel, and that he “d[id]n’t want to represent [him]self” but would do so if the court refused to appoint another attorney … . Defendant made no “standalone request to proceed pro se” … ; rather, all of his “requests to proceed pro se were made in the alternative; he sought to represent himself only because [the court] refused to replace . . . assigned counsel who had displeased him” … . A request to proceed pro se is equivocal where, as here, “it ‘does not reflect an affirmative desire for self-representation’ and instead shows that ‘self-representation was reserved as a final, conditional resort’ ” … . Inasmuch as defendant’s requests consisted of “equivocal and hesitant statements about proceeding pro se” … , the court’s duty to “make a searching inquiry . . . to determine whether [the] request[s] w[ere] knowing, voluntary, and intelligent” was not triggered … . People v Davis, 2025 NY Slip Op 04300, Fourth Dept 7-25-25

Practice Point: Consult this decision for a thorough discussion of what makes a defendant’s request to represent himself “unequivocal” (thereby by triggering the need for a searching inquiry by the judge into whether the request is knowing, voluntary and intelligent).

 

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THE MAJORITY DETERMINED THE PEOPLE DID NOT EXERCISE DUE DILIGENCE IN LOCATING REQUESTED DISCOVERY MATERIALS; THE INDICTMENT WAS PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS; A TWO-JUSTICE DISSENT ARGUED THE TIME WHEN THE OMNIBUS MOTIONS WERE UNDER CONSIDERATION SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, affirmed the dismissal of the indictment on speedy trial grounds. The dissenting justices agreed that the certificate of compliance was invalid, but argued the time that the defense omnibus motions were under consideration should not have been charged to the People:

… [T]he People contend that the court erred in determining that they violated their initial discovery obligations by failing to disclose the police report and body-worn camera footage relating to a welfare check of two of defendant’s children conducted by police officers two days after the alleged assault, inasmuch as they acted in good faith and with due diligence in an attempt to recover the report and footage. We reject that contention. * * *

… [D]espite being aware of the welfare check, which directly related to an issue upon which they presented testimony at the grand jury proceeding, the People failed to undertake the requisite efforts to ascertain the existence of, and obtain, the police report and body-worn camera footage, sending only a single letter to the police department that had conducted the welfare check and failing to follow up. We conclude under the circumstances presented here that the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the initial COC [certificate of compliance] and, thus, the court properly determined that the initial COC was improper and struck the statement of readiness as illusory … .

From the dissent:

… [W]e agree with the majority’s conclusion that the certificate of compliance in this case was invalid … , we cannot agree with the majority’s further conclusion that the People could be charged with more than six months of speedy trial time while defendant’s omnibus motion remained pending. In our view, it cannot be disputed that the omnibus motion remained pending before Supreme Court, i.e., “under consideration” (CPL 30.30 [4] [a]), at least in part, during the relevant time frame inasmuch as the portion of the motion seeking to compel production of certain materials pertaining to a welfare check … was neither decided by the court nor withdrawn by defendant before defendant moved to dismiss the indictment. Because we conclude that defendant’s omnibus motion remained pending before the court until defendant moved to dismiss the indictment on speedy trial grounds, we further conclude that all of the time that elapsed during that period was excludable, and that the People could not be charged with more than six months of statutory speedy trial time as a result … . People v Ernst, 2025 NY Slip Op 04329, Fourth Dept 7-25-25

Practice Point: Consult this decision for a discussion of the meaning of “due diligence” in the context of the People’s response to discovery demands.

 

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DEFENDANT MOVED TO VACATE HIS CONVICTION ARGUING HIS ATTORNEY WAS INEFFECTIVE FOR WAIVING AN INTERPRETER; COUNTY COURT SHOULD HAVE HELD A HEARING ON THE MOTION; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent. determined County Court should have held a hearing on defendant’s motion to vacate his conviction. Defendant argued defense attorney’s waiver of an interpreter constituted ineffective assistance. Defendant’s ineffective-assistance argument on direct appeal had been rejected, but the motion to vacate properly raised the waiver of an interpreter as a new issue:

We agree with defendant that County Court erred in its determination that defendant’s claim that he was denied effective assistance of counsel was procedurally barred pursuant to CPL 440.10 (2) (a) … . Although on direct appeal we rejected defendant’s contention that he was denied effective assistance of counsel … , we conclude that his present contentions are properly raised by way of a CPL 440.10 motion because they concern matters outside the record that was before us on his direct appeal … . Defendant’s motion contained sufficient evidence, including “sworn allegations . . by . . . defendant or by another person or persons” (CPL 440.30 [1] [a]), demonstrating that a hearing is necessary to determine whether trial counsel’s waiver of an interpreter for defendant adversely affected defendant’s right to meaningfully participate in his own defense … . Specifically, defendant submitted evidence that, although he was able to navigate conversational topics in English, he required the assistance of an interpreter when discussing more technical or esoteric topics and that he had in fact utilized the assistance of an interpreter at all but one court appearance prior to his trial counsel waiving such services for defendant just prior to trial. “Although the evidence in support of the motion does not ‘conclusively substantiate[ ] by unquestionable documentary proof’ that vacatur is required due to a violation of defendant’s right to [effective assistance of] counsel . . . , it is nonetheless suggestive of that fact” … . Defendant is therefore entitled to a hearing “on his entire claim of ineffective assistance of counsel inasmuch as such a claim constitutes a single, unified claim that must be assessed in totality” … . People v Anwar, 2025 NY Slip Op 04301, Fourth Dept 7-25-25

Practice Point: This decision gives some insight into when the court must conduct a hearing on a motion to vacate a conviction. The discussion is enriched by a two-justice dissent.

 

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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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