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COUNTY COURT DECIDED TO ANONYMIZE POTENTIAL AND EMPANELED JURORS IN THIS MURDER TRIAL; THE MAJORITY CONCLUDED THE ANONYMIZED JURY DID NOT CONSTITUTE A MODE OF PROCEEDINGS ERROR AND DID NOT WARRANT INTERVENTION IN THE INTEREST OF JUSTICE; THE TWO-JUSTICE DISSENT ARGUED THE EFFECT OF THE ANONYMIZED JURY ON THE PRESUMPTION OF INNOCENCE WARRANTED REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court’s “unsupported decision to anonymize potential and empaneled jurors” was not a mode of proceedings error and did not require reversal in the interest of justice:

From the dissent:

Considering the significance of the jury’s determination that defendant acted with the intent to kill rather than some lesser objective, the potential effect of empaneling an anonymous jury on defendant’s presumption of innocence warrants corrective action. We need look no further than the Court of Appeals’ characterization of the use of an anonymous jury, even with the proper factual predicate, as an “extraordinary procedure” (People v Flores, 32 NY3d at 1088). The logical import from the Court’s statement is that an error in the process is equally extraordinary and warrants corrective action. Moreover, although defendant was aware of the names of the jurors, that does not resolve the effect that employing an anonymous jury has on the presumption of innocence. Although not expressly stated, the majority’s decision to forgo corrective action in this case appears to be founded on the conclusion that the error itself is not significant; in other words, a harmless error analysis without explicit reference, which, as previously noted, this Court has already rejected when addressing the improper use of an anonymous jury … . All told, regardless of preservation, the principle remains that an appellate court is not in a position to “adjudge the causal effect that the error in empaneling an anonymous jury might have had on the jury’s verdict” … . For these reasons, we believe corrective action is warranted in this case and would reverse and remit for a new trial. People v Goberdhan, 2025 NY Slip Op 04601, Third Dept 8-7-25

Practice Point: Consult this decision for a discussion of the propriety of anonymizing the jury and the effect an anonymized jury may have on the presumption of innocence.

Same “anonymized jurors” issue and result (over a two-justice dissent) in People v Reinfurt, 2025 NY Slip Op 04603, Third Dept 8-7-25

 

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HERE PLAINTIFF DID NOT FILE A NOTE OF ISSUE BY THE COURT-ORDERED DEADLINE BUT NO NINETY-DAY NOTICE HAD BEEN SERVED AND THERE HAD BEEN NO ORDER DISMISSING THE COMPLAINT; NO EXCUSE FOR THE DELAY IS NECESSARY, THERE IS NO SPECIFIC TIME FRAME FOR A MOTION TO RESTORE, AND RESTORATION TO THE ACTIVE CALENDAR IS AUTOMATIC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar should have been granted. Even though plaintiff had failed to file a note of issue by a court-ordered deadline, no CPLR 3216 ninety-day notice had been served and there had been no order directing dismissal of the complaint. Therefore plaintiff need not provide an excuse for the delay. Restoration to the calendar was automatic and there was no specific time frame for the motion to restore:

“When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27” … . “Under these circumstances, a motion to restore the action to the calendar should be granted without considering whether the plaintiff had a reasonable excuse for the delay or . . . engaged in dilatory conduct” … . Further, “CPLR 3404 d[oes] not apply . . . to . . . pre-note of issue” actions … . “[S]ince this action was pre-note of issue and could not properly be marked off the calendar pursuant to CPLR 3404, the plaintiff was not required to move to restore the action to the calendar within any specified time frame” … . Tarasiuk v Levoritz, 2025 NY Slip Op 04592, Second Dept 8-6-25

Practice Point: Although plaintiff did not file a note of issue by the court-ordered deadline, because there had been no ninety-day demand and no court order dismissing the complaint, restoration to the active calendar was automatic.

 

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HERE THE VICTIMLESS CRIME DID NOT CONSTITUTE “EXTRAORDINARY CIRCUMSTANCES” WITHIN THE MEANING OF THE “RAISE THE AGE” LEGISLATION; THE PEOPLE’S MOTION TO PREVENT THE REMOVAL OF THE ADOLESCENT OFFENDER’S CASE FROM THE YOUTH PART OF SUPREME COURT TO FAMILY COURT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a comprehensive opinion by Justice Chambers, determined the People’s motion to prevent the removal of this criminal action against a 16-year-old from the Youth Part of Supreme Court to Family Court should not have been granted. The opinion focuses on the meaning of “extraordinary circumstances” in the controlling “Raise the Age” legislation which would warrant overcoming the presumption supporting removal to Family Court for adolescent offenders. The opinion is far too detailed to fairly summarize here:

In effect, the Youth Part treated a single rearrest—absent a conviction—as dispositive of the defendant’s future potential. That reasoning, if broadly applied, would undermine the core purpose of the Raise the Age legislation. The mere fact that an adolescent engaged in rehabilitative services and was later arrested, without more, does not constitute “strong proof” … that he or she is beyond the reach of the Family Court system.

Although the Youth Part concluded that “no one factor on its own may have been enough,” it found that the defendant’s prior record and prior service engagement, “coupled” with the “nature of the pending charges,” amounted to extraordinary circumstances. But none of those factors, either individually or together, rise to the level of exceptionality contemplated by the Raise the Age legislation. A second arrest for a victimless act of adolescent bravado does not convert otherwise ordinary circumstances into extraordinary ones.

Therefore, the Youth Part should have denied the People’s motion pursuant to CPL 722.23(1) to prevent removal of this action to Family Court and transferred this action to the Family Court, Richmond County. People v Lloyd F., 2025 NY Slip Op 04583, Second Dept 8-6-25

Practice Point: Consult this opinion for an in-depth analysis of the criteria for keeping an adolescent offender’s prosecution in the Youth Part of Supreme Court as opposed to removing the case to Family Court for a juvenile-delinquency proceeding.

 

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THE JUDGE SHOULD NOT HAVE ISSUED A PROTECTIVE ORDER REQUIRING PLAINTIFFS’ COUNSEL TO INFORM DEFENDANTS’ FORMER EMPLOYEES THAT COUNSEL’S INTERESTS ARE ADVERSE TO THEIRS AND TO RECOMMEND THE FORMER EMPLOYEES RETAIN COUNSEL BEFORE ANY DISCUSSION WITH PLAINTIFFS’ COUNSEL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this action alleging sexual abuse of the plaintiffs in the steam rooms of defendants’ fitness clubs should not have issued a protective order concerning interviews of defendants’ former employees by plaintiffs’ counsel. The order precluded plaintiffs’ counsel from communicating with any former employees without advising them that their interests are, or are reasonably likely to become, adverse to counsel’s interests and recommending that the former employees retain counsel before continuing the discussion:

Supreme Court improvidently exercised its discretion in granting that branch of the defendants’ motion which was pursuant to CPLR 3103 for an order precluding the plaintiffs’ counsel from communicating with any former employees of Equinox without advising them that their interests are, or are reasonably likely to become, adverse to counsel’s clients’ interests and recommending that the former employees retain counsel before continuing the discussion. The defendants failed to make the requisite showing pursuant to CPLR 3103(a) to warrant the issuance of a protective order … . The defendants’ allegations of prejudice in the absence of a protective order were both conclusory and speculative … . G.B. v Equinox Holdings, Inc., 2025 NY Slip Op 04452, Second Dept 7-30-25

Practice Point: Here a protective order restricting communications between plaintiffs’ counsel and defendants’ former employees was reversed because the need for the order was not adequately demonstrated by conclusory and speculative allegations.

 

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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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