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A JUROR, AN ATTORNEY, ALLEGEDLY TOLD THE OTHER JURORS THAT THE “BEYOND A REASONABLE DOUBT” STANDARD COULD BE DISREGARDED; DEFENDANT WAS ENTITLED TO A “JUROR MISCONDUCT” HEARING IN CONNECTION WITH HIS MOTION TO SET ASIDE THE VERDICT (FIIRST DEPT). ​

The First Department, holding the matter in abeyance, determined the allegations that a juror, A.H., an attorney, told the other jurors the “beyond a reasonable doubt” standard did not apply to everything in the case necessitated an evidentiary hearing on defendant’s motion to set aside the verdict:​​

Some of the alleged conduct of juror A.H., an attorney, described in the supporting affidavits of two jurors, was an emphatic expression of the juror’s thoughts, his strong belief in defendant’s guilt, his understanding of the court’s instructions, his personal antipathy to the defendant, and, to the extent it was incorrect, his understanding of the law, none of which constitutes juror misconduct under CPL 330.30(2) … . However, the affidavit of one juror (E.A.) affirmed that A.H. “told us that we did not have to apply the beyond a reasonable doubt standard for everything in the case.” The other juror (S.D.) affirmed that A.H. averred, without any stated exception, “that the proof did not have to be beyond a reasonable doubt.”

Considering these attestations regarding A.H.’s alleged direction to the jury members to disregard the court’s instruction concerning the burden of proof, defendant was entitled to an evidentiary hearing on his motion to set aside the verdict. We hold the appeal in abeyance for that purpose. People v Hernandez, 2025 NY Slip Op 01589, Ct App 3-18-25

Practice Point: Consult this decision for some insight into what is, and what is not, juror-misconduct, here in the context of a juror, an attorney, telling the other jurors the “beyond a reasonable doubt” standard may be disregarded.

 

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WHERE THERE IS A FACTUAL DISPUTE ON A MATERIAL ISSUE WHICH MUST BE RESOLVED BEFORE THE COURT CAN DECIDE A LEGAL ISSUE, THE FACTUAL DISPUTE MUST BE RESOLVED IN A HEARING BEFORE THE COURT CAN DECIDE THE LEGAL ISSUE; WHETHER THE RECORD GIVES RISE TO A FACTUAL DISPUTE ON A MATERIAL ISSUE IS A QUESTION OF LAW (CT APP).

The Court of Appeals, reversing the Appellate Division, determined a factual dispute about whether an attorney (Santamarina) validly waived personal jurisdiction on behalf of defendant Koukis required a hearing:

Supreme Court decided Mr. Koukis’s motion without a factual hearing, holding that Mr. Santamarina lacked authority to act on Mr. Koukis’s behalf and vacating his waiver of personal jurisdiction and service defenses. But Supreme Court concluded that personal jurisdiction existed over Mr. Koukis pursuant to CPLR 302 (a) (2). It therefore set the matter down for a traverse hearing to determine if service on Mr. Koukis of the summons and complaint was proper.

Before the traverse hearing occurred, the Appellate Division modified the order of Supreme Court by vacating the default judgment and granting Mr. Koukis’s motion to dismiss based upon a lack of jurisdiction. The Appellate Division held that “there was no basis to conclude that Koukis authorized Santamarina to appear and waive all jurisdictional defenses on his behalf” … . Additionally, the majority departed from Supreme Court in its analysis of CPLR 302 (a) (2), concluding that the court did not have personal jurisdiction and dismissing the complaint in its entirety … . Two Justices partially dissented on the ground that Supreme Court should have held a hearing to determine whether Mr. Santamarina had the authority to represent Mr. Koukis … . We now reverse on the basis that there is a material factual dispute as to whether Mr. Koukis authorized or ratified the waiver of personal jurisdiction

[Plaintiff] was entitled to a factual hearing to determine whether Mr. Santamarina validly appeared on Mr. Koukis’s behalf and waived personal jurisdiction. Where the record shows a “factual dispute on a material point which must be resolved before the court can decide the legal issue,” the court may not grant the motion without first holding a hearing (… see … CPLR 2218). Whether the record gives rise to such a factual dispute is a question of law … .Gibson, Dunn & Crutcher LLP v Koukis, 2025 NY Slip Op 01565, CtApp 3-18-25

Practice Point: Here there was a factual dispute on a material issue which had to be decided before the related legal question could be answered. Therefore a hearing was required to resolve the factual issue before the court addressed the legal issue. Whether a factual dispute on a material issue exists raises a question of law.

 

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DEFENSE COUNSEL’S LACK OF PREPARATION AND FAILURE TO LIMIT MOLINEUX EVIDENCE DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction, determined defendant was not provided with effective assistance of counsel:

… [T]he record reveals that on several occasions as the case neared trial, including during the Mapp and Molineux hearings, and subsequently at the trial defense counsel was unfamiliar with and had not reviewed relevant and critical discovery obtained from defendant’s cell phones following the execution of a search warrant. For example, defense counsel initially failed to object to the admission of a flash drive containing the entire contents of defendant’s cell phones, but, when the People later isolated a portion of the cell phone contents as a separate exhibit for the jury, defense counsel objected—although the contents had already been admitted—and acknowledged that he had not had a chance to review “the exact exhibit.” Defense counsel also failed to object to the portion of those contents containing voice notes, which constituted improper hearsay … . Additionally, defense counsel’s failure to review the contents of defendant’s cell phones had the result that he could not appreciate how important certain text messages and other communications were to the People’s case. Defense counsel belatedly sought to admit certain physical evidence of financial transactions that had not previously been disclosed during discovery to counter the communications presented by the People. County Court, however, precluded that physical evidence. Furthermore, defense counsel never sought a limiting instruction on the Molineux evidence that the People were permitted to introduce … . We conclude that “[t]here is simply no legitimate explanation for” defense counsel’s failure to properly investigate the law, facts, and issues relevant to the case and that “[t]his failure seriously compromised defendant’s right to a fair trial” … . People v Cousins, 2025 NY Slip Op 01535, Fourth Dept 3-14-25

Practice Point: Here defense counsel did not review evidence provided in discovery and failed to seek a limiting instruction on the Molineux evidence the People were allowed to introduce. A new trial was ordered.

 

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ALTHOUGH THE JUDGE APPOINTED STANDBY COUNSEL AS DEFENDANT REQUESTED, THE JUDGE DID NOT CONDUCT AN ADEQUATE INQUIRY TO ENSURE DEFENDANT UNDERSTOOD THE RISKS OF REPRESENTING HIMSELF; GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined the judge did not conduct an adequate inquiry before granting defendant’s request to represent himself. The appointment of standby counsel is not a substitute for an inquiry to make sure a defendant understands the risks:

… [D]efendant repeatedly conditioned his request on proceeding pro se “with standby [counsel].” In response to defendant’s request, County Court inquired as to whether defendant knew the rule regarding standby counsel. Although defendant replied in the negative, the court provided no further explanation and, instead, proceeded to question defendant about his knowledge of the law. Following a week-long adjournment for defendant to confer with counsel regarding his request to proceed pro se, at the next court appearance, defendant reaffirmed his desire to proceed pro se with standby counsel. Although the court informed defendant that he did not qualify for standby counsel because he seemed to be familiar with some legal terms, defendant responded that he was requesting standby counsel because he does not know everything in the law. The record does not otherwise reflect that defendant was informed of or understood that, despite being permitted to proceed with standby counsel, there were risks inherent in proceeding pro se. Upon this record, we conclude that County Court’s inquiry was insufficient to establish that defendant’s waiver of the right to counsel was knowing and voluntary and, accordingly, the plea must be vacated … . People v Gray, 2025 NY Slip Op 01259, Third Dept 3-6-25

Practice Point: The appointment of standby counsel is not a substitute for a judge’s responsibility to make an inquiry to ensure the defendant is aware of the risks of representing himself.

 

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DEFENSE COUNSEL’S FAILURE TO REQUEST THAT THE JURY BE INSTRUCTED ON THE HEIGHTENED DEFINITION OF IMPAIRMENT DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; AT THE TIME OF THE TRIAL THERE WAS NO APPELLATE AUTHORITY FOR THE APPLICATION OF THE HEIGHTENED DEFINITION OF IMPAIRMENT IN ANY CONTEXT OTHER THAN VEHICULAR MANSLAUGHTER (THIRD DEPT).

The Third Department, affirming defendant’s conviction, over a dissent, determined that the heightened definition of “impaired” which has been applied to a vehicular manslaughter charge need not be applied to driving while ability impaired by drugs or a combination thereof, the charges against defendant here. Therefore the failure to request that the jury be instructed to apply the heightened definition of impaired did not constitute ineffective assistance of counsel:

At the time of defendant’s trial, there was no appellate authority which warranted a jury instruction concerning the heightened intoxication standard relative to the crimes that were pending against defendant. In Caden N. [189 AD3d 84], this Court, by its own express language, limited its holding to the crime of vehicular manslaughter, which of course is not present here. That is, this Court was careful to state that it was defining impairment “in the context of assessing whether a person has committed the crime of vehicular manslaughter in the second degree” (People v Caden N., 189 AD3d at 90). In the event that this Court had also wished to apply the new definition of impairment to the underlying crimes of driving while ability impaired by drugs or by a combination thereof, it surely would have explicitly stated as much. * * *

In the absence of any such authority, defense counsel properly acquiesced to the jury being charged in accordance with the definition of impairment that was provided in the Criminal Jury Instructions as of that time. Thus, under these circumstances, it cannot be said that any reasonable defense counsel would have requested the intoxication instruction in place of the impairment instruction, and counsel was not ineffective for failing to do so. People v Ambrosio, 2025 NY Slip Op 01133, Third Dept 2-27-25

Practice Point: The Third Department has applied a heightened definition of impairment for vehicular manslaughter cases. The Fourth Department refused to follow suit. The law in this area is in flux.

 

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IN AN EFFORT TO CONVINCE THE COURT TO GRANT THEIR REQUEST FOR A COMPETENCY HEARING BASED UPON DEFENDANT’S REJECTION OF A FAVORABLE PLEA OFFER, THE DEFENSE ATTORNEYS REVEALED CONFIDENTIAL COMMUNICATIONS WITH DEFENDANT ABOUT THE STRENGTH OF THE EVIDENCE; ALTHOUGH THE DEFENSE ATTORNEYS WERE ATTEMPTING TO HELP THE DEFENDANT, THE DEFENSE ATTORNEYS BECAME WITNESSES AGAINST THE DEFENDANT, DEPRIVING HIM OF HIS RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant received ineffective assistance of counsel. Defendant was offered a plea deal which avoided incarceration for robbery and assault. When defendant rejected the offer, the defense attorneys requested a competency examination. In arguing for the competency examination, the defense attorneys described their efforts to convince defendant to accept the plea bargain, including a mock trial in the defense attorneys’ office finding defendant guilty. The Second Department determined the defense attorneys, by describing their confidential communications with defendant, which included the strength of the evidence, had become witnesses against the defendant:

… [T]he defendant’s right to counsel was adversely affected, and he received ineffective assistance of counsel when his attorneys revealed confidential communications on the record and, in effect, took a position adverse to him … . Contrary to the People’s contention, defense counsels did more than merely express concern that the defendant misunderstood the nature of the relevant issues … . Instead, defense counsels emphasized the strength of the evidence against their client, including revealing that a mock trial conducted in their office resulted in the defendant being found guilty … . These detailed statements, in effect, made defense counsels witnesses against their client, regardless of whether defense counsels allegedly made these statements in order to aid the application for an examination pursuant to CPL article 730 or in an attempt to persuade the defendant to accept what they viewed as a highly favorable plea offer. Although defense counsels had an obligation to advise the defendant regarding the plea offer … , the defendant retains the authority to accept or reject a plea offer, even having accepted the assistance of counsel … , and defense counsels must provide meaningful representation consistent with the defendant’s desire to proceed to trial … . People v Montgomery, 2025 NY Slip Op 01111, Second Dept 2-26-25

Practice Point: Here the defense was trying to help the defendant by requesting a competency hearing after he rejected a favorable plea offer. In arguing for the competency hearing, the defense revealed confidential discussions with the defendant about the strength of the evidence, thereby becoming witnesses against the defendant and depriving him of his right to counsel.​

 

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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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