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DEFENDANT, BY FIRING HIS ATTORNEY AND REFUSING TO BE PRESENT AT TRIAL, WAIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND HIS RIGHT TO BE PRESENT AT HIS TRIAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a concurrence and an extensive dissent, determined defendant, by firing his attorney and refusing to be present during the trial, waived his right to effective assistance of counsel and his right to be present at his trial. The court further determined that the consecutive sentences for two counts of criminal possession of a weapon were improper because both offenses arose from the same act of possession:

“Waiver is a knowing, intelligent, and voluntary relinquishment of a known right” … . Like other fundamental rights, a defendant’s right to effective assistance of counsel may be waived … . We have explained that “[a]n accused awaiting trial . . . has only two choices regarding legal representation—proceed with counsel or waive the protection of the Sixth Amendment and proceed pro se” … . Accordingly, when a defendant “refuse[s] self-representation and restrict[s] the participation of counsel . . . [they] hav[e] voluntarily waived the right to the effective assistance of counsel” … .

Whether the waiver of a fundamental right is valid “depend[s], in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused” … . “In many instances, the requisite affirmative showing that . . . [a] right[ ] ha[s] been knowingly, voluntarily, and intelligently waived will include a direct colloquy between the court and the defendant” … . We have also long held that a defendant may waive certain fundamental rights by their conduct, most notably in the context of the right to be present … . In determining whether such a waiver occurred, relevant circumstances include the warnings provided by the trial court, the defendant’s actions in response, and whether, in light of the defendant’s conduct, the trial court could practicably have administered additional warnings or attempted to secure an oral waiver. * * *

In light of the trial court’s many warnings to defendant and defendant’s obstructive behavior in response, there is record support for the conclusion that, by his conduct, defendant waived the right to effective assistance of counsel. A trial court must be cautious not to conflate waiver of the right to be present at trial with waiver of the right to effective assistance of counsel. These rights are separate, and a trial court has distinct duties to ensure the validity of a defendant’s waiver of each. However, in certain circumstances, as in this case, the same conduct may amount to a waiver of both rights. People v Lewis, 2026 NY Slip Op 01588, CtApp 3-19-26

Practice Point: A defendant by his behavior (here firing his attorney and walking out of the trial), in the face of sufficient warnings by the judge, may waive both the right to effective assistance of counsel and the right to be present at the trial.

 

NEW YORK’S MARIHUANA REGULATION AND TAXATION ACT (MRTA) IS NOT PREEMPTED BY THE FEDERAL CONTROLLED SUBSTANCES ACT (CSA) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined New York’s Marihuana Regulation and Taxation Act (MRTA) which allows the sale and use of marihuana, is not preempted by the federal Controlled Substance Act, which does not allow the sale and use of marihuana:

… [W]e turn to petitioners’ contention that the challenged regulations promulgated under MRTA — which authorizes the sale, use and distribution of marihuana — create a positive conflict with the CSA prohibiting these exact actions. We find that no such conflict exists. Consistent with the main objectives of the CSA, the legislative intent behind MRTA was to, among other things, “regulate, control, . . . reduce the illegal drug market and reduce violent crime, reduce participation of otherwise law-abiding citizens in the illicit market . . . [and] protect the public health, safety and welfare of the people of the state” … . In doing so, the Legislature specifically provided that nothing in MRTA was “to require any individual to engage in any conduct that violates federal law or to exempt anyone from any requirement of federal law or pose any obstacle to the federal enforcement of federal law” … . Each of the challenged parts 113, 128 and 129 within title 9 of the NYCRR further these principles by regulating the legitimate and illegitimate handling of marihuana by setting specific restrictions on prescribers, manufacturers and retailers — including, as specifically challenged by petitioners, how medical and adult-use marihuana could be labeled, advertised and marketed … . When considered through the lens of a conflict preemption analysis, although petitioners present several instances where they claim there is an impossibility between federal and state law, these are merely hypothetical or potential conflicts, as neither MRTA nor the challenged regulations pose any requirements on an individual or entity to manufacture, distribute or possess marihuana … . Matter of Cannabis Impact Prevention Coalition, LLC v Hochul, 2026 NY Slip Op 01573, Third Dept 3-19-26

Practice Point: Consult this opinion for a cogent summary of the criteria for federal preemption of a state law.​

 

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PLAINTIFF WAS A CO-PILOT OF A HELICOPTER USED TO PROVIDE AN AERIAL PLATFORM FOR WORK ON POWER LINES; THE HELICOPTER STRUCK A POWER LINE AND PLAINTIFF JUMPED FROM THE HELICOPTER FROM A HEIGHT OF 75 FEET; THE LABOR LAW 240(1) AND 241(6) STRICT LIABILITY CAUSES OF ACTION WERE PREEMPTED BY THE FEDERAL AVIATION ACT (FAA); THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; RATHER THE FEDERAL STANDARD OF CARE SHOULD BE APPLIED TO THOSE CAUSES OF ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Ford, determined the Labor Law 240(1) and 241(6) six causes of action were preempted by the Federal Aviation Act (FAA) but the negligence and Labor Law 200 causes of action should not have been dismissed because the federal standard of care can be applied to them. Plaintiff was the co-pilot of a helicopter which was being used to provide an aerial platform for work on power lines. The helicopter struck a power line and plaintiff jumped out of the helicopter from a height of 75 feet:

Under the federal rules, “[t]he pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft” (14 CFR 91.3[a] …). Various federal courts have held that the pilot thereby has the “sole responsibility to determine whether it is safe or unsafe to undertake the proposed flight” … . * * *

Additionally, under the federal rules, “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another” (14 CFR 91.13[a]). This rule is “[c]entral” to the FAA’s overarching standard of care …. Common-law negligence cases require a more stringent standard of care, “that of a reasonable person under the same or similar circumstances” … . Labor Law § 200 codifies the common-law negligence standard … , while Labor Law §§ 240(1) and 241(6) “subject contractors and owners to absolute strict liability” … . The standards of care underlying the four sources of liability alleged by the plaintiff—i.e., liability for common-law negligence and under Labor Law §§ 200, 240(1), and 241(6)—thereby conflict with, and are preempted by, the federal recklessness standard. …

Where applicable, the effect of preemption of a state standard of care is not to preclude recovery or “to deprive Plaintiffs of their state remedies, but rather, to substitute a federal standard of care for New York’s reasonably-prudent-person standard” … . Fabia v Power Auth. of the State of N.Y., 2026 NY Slip Op 01489, Second Dept 3-18-26

Practice Point: Here, although the Federal Aviation Act (FAA) preempted the strict liability Labor Law 240(1) and 241(6) causes of action in this helicopter-accident case, the negligence and Labor Law 200 causes of action should not have been dismissed because the federal standard of care can be applied to them.

Practice Point: Consult this opinion for an in-depth analysis of the issues raised by preemption of state Labor Law and negligence claims stemming from a helicopter accident by the Federal Aviation Act (FAA).

 

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THE FOURTEEN-MONTH PRE-INDICTMENT DELAY DID NOT VIOLATE DEFENDANT’S RIGHT TO A SPEEDY TRIAL (CT APP)

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the 14-month pre-indictment delay did not deprive defendant of his constitutional right to a speedy trial. Defendant was incarcerated when he threw urine on a corrections officer. The court analyzed the facts under the “Taranovich” criteria (37 NY2d 442):

This Court analyzes due process claims predicated on a pre-indictment delay by weighing the five factors set forth in People v Taranovich: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” … . “The Taranovich framework is a holistic one—that is, ‘no one factor or combination of the factors . . . is necessarily decisive or determinative of the speedy trial claim'” … . People v Tyson, 2026 NY Slip Op 01446, CtApp 3-17-26

Practice Point: Consult this decision for insight into how the Taranovich factors are applied to determine whether a pre-indictment delay violates the constitutional right to a s speedy trial.

 

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A NEW YORK CITY LOCAL LAW WHICH PROHIBITS THE SALE OF FOIE GRAS, A “FATTY LIVER” CREATED BY FORCE FEEDING GEESE AND DUCKS, IS NOT PRE-EMPTED BY THE AGRICULTURE AND MARKETS LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mackey, determined the NYC Local Law which prohibited the sale of foe gras was not pre-empted by the Agriculture and Markets Law. Foie gras (fatty liver) is produced by force feeding geese or ducks several times a day:

Foie gras, which translates to English as “fatty liver,” is a food product obtained through such forced feeding of a goose or duck, by which the animal is made to consume large quantities of grain and fat using a pipe that is inserted down the esophagus. This process, which is repeated several times per day, seeks to produce a significantly enlarged liver when compared to that of a non-force-fed bird. * * *

… Agriculture and Markets Law § 305-a provides that “[l]ocal governments, when exercising]their powers to enact and administer comprehensive plans and local laws, ordinances, rules or regulations, shall exercise these powers in such manner as may realize the policy and goals set forth in this article, and shall not unreasonably restrict or regulate farm operations within agricultural districts in contravention of the purposes of this article unless it can be shown that the public health or safety is threatened” … . * * *

… Agriculture and Markets Law article 25-AA was expressly enacted to protect agricultural lands from “nonagricultural development extend[ing] into farm areas,” as well as “[o]rdinances inhibiting farming,” which “often lead[ ] to the idling or conversion of potentially productive agricultural land” … . The Legislature thus clearly expressed its intent that Agriculture and Markets Law § 305-a preempt those local laws that result in direct and unreasonable restrictions or regulations upon farming operations and the associated use of land — not the sale of products produced as a result of those operations in retail food and food service establishments, which may be subject to other statutory and regulatory limitations. Matter of City of New York v Ball, 2026 NY Slip Op 01426, Third Dept 3-12-26

Practice Point: Consult this opinion for insight into the Home Rule and pre-emption issues raised by a claim that a NYC Local Law, which prohibits the sale of animal products produced by force-feeding, is pre-empted by the Agriculture and Markets Law which seeks to limit infringement on farming operations. The pre-emption argument was rejected.​

 

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THE EXECUTIVE LAW WHICH MAKES A LANDLORD’S REFUSAL TO ACCEPT TENANTS WHO RECEIVE SECTION 8 VOUCHERS AN UNLAWFUL DISCRIMINATORY PRACTICE IS UNCONSTITUTIONAL BECAUSE, AS A RESULT OF ACCEPTING SECTION 8 FUNDS, LANDLORDS MUST SUBMIT TO UNREASONABLE SEARCHES OF APARTMENTS AND RECORDS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, determined Executive Law section 296(5)(a)(1) is unconstitutional. The statute makes a landlord’s refusal to rent to tenants who receive Section 8 housing vouchers an unlawful discriminatory practice. The landlords argued “the source-of-income discrimination law is unconstitutional on its face because it, in effect, requires landlords to take part in the Section 8 program, which in turn obligates them to consent to warrantless searches of their premises and records in violation of the Fourth Amendment:”

The particulars of respondents’ [landlords’] constitutional claim are as follows. By prohibiting discrimination based upon source of income, respondents argue, the Legislature has required landlords to accept Section 8 vouchers and, as a condition of participating in that program, agree to allow searches of their properties and records. More specifically, under the governing federal statutes and regulations, a potential Section 8 apartment must meet certain housing quality standards … , and in order to determine whether these standards are met, the local PHA [public housing agency] administering the program must perform an inspection of the apartment, the equipment that services the apartment and the common areas of the building before the apartment is occupied and again not less than biennially during the term of the tenancy … . Further, for purposes of assessing whether the rent charged by the landlord is reasonable, the landlord must make available to the PHA its records concerning the apartment in question as well as the amounts of rent it charges for other units, both in the building in question and in other buildings … . The landlord must sign a standard housing assistance payment (hereinafter HAP) contract, in which it agrees to provide “full and free access” to the apartment, the premises and all relevant accounts and records. Respondents contend that these inspection mandates force them to surrender the Fourth Amendment’s protections against governmental searches of private property in the absence of either voluntary consent or a warrant, neither of which are provided for here. * * *

An inspection scheme must assure that the discretion of the inspecting officers is “carefully limited in time, place, and scope” … , and we find that the Section 8 inspection regime lacks these safeguards. With respect to timing, although the regulations set benchmarks for when inspections should be performed at the outset of the tenancy and then at least once every two years thereafter there is no further guidance as to the frequency of the inspections and, indeed, they must be done whenever the PHA receives a complaint … . As for the place and scope of a search, while the regulations offer examples of interior spaces that may be searched and explain the purposes of the search, there are no limitations placed on what may be inspected. When combined with the HAP contract, which requires landlords to allow “full and free access to the contract unit and the premises, and to all accounts and other records of the owner that are relevant to the HAP contract,” the place and scope of a permissible search are exceedingly broad. Under these circumstances, the inspection scheme does not provide adequate safeguards … . Matter of People of the State of N.Y. v Commons West, LLC, 2026 NY Slip Op 01253, Third Dept 3-5-26

 

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THE INVOLVEMENT OF A VAN IN A ROAD RAGE SHOOTING THREE WEEKS BEFORE THE TRAFFIC STOP AND AN INCIDENT WHERE A TRAFFIC AGENT WAS NEARLY STRUCK BY THE VAN 24 HOURS BEFORE THE STOP PROVIDED “REASONABLE SUSPICION” THAT THE DRIVER OF THE VAN AT THE TIME OF THE STOP WAS THE DRIVER DURING THE ROAD-RAGE AND TRAFFIC-AGENT INCIDENTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined “reasonable suspicion” supported a traffic stop of a van which had been involved in a road rage shooting three weeks before and had sped away from a traffic agent, nearly striking the agent, 24 hours before the stop. The driver who was involved in the road-rage and ticket-agent incidents had not been identified at the time of the stop:

Although police must have individualized suspicion that the driver or occupant of a vehicle has committed a crime to conduct a traffic stop, information about a car’s involvement in prior criminal activity may support a finding of reasonable suspicion … . Such prior activity contributes to a determination of reasonable suspicion when it occurs with sufficient temporal and geographic proximity to the stop to infer that the person who was driving the car during the prior crime is also driving at the time of the stop … . …

The officers who stopped the defendant on May 18th had information from a license plate search indicating that a white Dodge Caravan with a license plate number matching the defendant’s vehicle was involved in a road rage shooting in Washington Heights on April 28th. Although that information was nearly three weeks old, the officers also knew from their conversation with the traffic agent that less than 24 hours before the stop and in the same neighborhood, someone driving the same car had evaded a parking ticket and nearly hit the traffic agent as they drove away. Because the driver during the traffic infraction sped away, almost hitting the traffic agent, the officers could have reasonably inferred that the driver during the parking violation was also the driver during the shooting and fled to avoid repercussions from the shooting. Thus, in addition to inferring that there was a connection between the vehicle and the two incidents, they also reasonably inferred that the same person was driving that vehicle during both incidents. Moreover, the officers knew from the vehicle’s registration that it was privately owned, which significantly narrowed the universe of potential drivers … . People v Zubidi, 2026 NY Slip Op 00964, CtApp 2-19-26

Practice Point: Here circumstantial evidence that the same driver of an identified van was involved in a road-rage shooting and in nearly striking a traffic agent was deemed to provide “reasonable suspicion” supporting a traffic stop of the van three weeks after the road-rage incident and 24 hours after the traffic-agent incident.

 

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THE MISTRIAL, GRANTED AFTER THE JURY WAS SWORN, DID NOT TRIGGER THE DOUBLE-JEOPARDY BAR TO FURTHER PROSECUTION BECAUSE THE JUDGE’S INQUIRY REVEALED THAT A JUROR’S COMMENTS, AND THE OTHER JURORS’ REACTIONS TO THOSE COMMENTS, IRREPARABLY TAINTED THE JURY (THIRD DEPT). ​

The Third Department, dismissing the defendant’s (respondent’s) prohibition petition, in a full-fledged opinion by Justice Mackey, determined that the mistrial granted after the jury had been sworn did trigger the double-jeopardy bar to further prosecution because the trial judge (the respondent) properly found “there was manifest necessity for the mistrial.” Comments made by juror No. 5, and other jurors reactions to the comments, irreparably tainted the jury:

… CPL 280.10 authorizes the court to declare a mistrial “[u]pon motion of the people, when there occurs during the trial, either inside or outside the courtroom, gross misconduct by . . . a juror, resulting in substantial and irreparable prejudice to the people’s case” … . * * *

… [J]uror No. 5’s comments and flagrant disregard for respondent’s admonitions resulted in “substantial and irreparable prejudice” to the People’s case (CPL 280.10 [2]). Although each juror averred that they could nevertheless remain fair and impartial, the record supports respondent’s contrary conclusion in light of the hesitation of many jurors to disclose juror No. 5’s conduct, the denial of others as to having heard any of the subject comments at all and another juror who gave contradictory answers about what he had heard, notwithstanding respondent’s instructions to report improper attempts to influence the jury. Matter of Guiden v Jose-Decker, 2026 NY Slip Op 00942, Third Dept 2-19-26

Practice Point: Consult this opinion for insight into the procedure to be followed by the judge before granting a mistrial after the jury has been sworn. To avoid the double-jeopardy bar to further prosecution, the record must demonstrate “a manifest necessity for a mistrial.”

 

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RETROACTIVE APPLICATION OF THE FORECLOSURE ABUSE PROTECTION ACT (FAPA) DOES NOT VIOLATE THE TAKINGS CLAUSE OF THE US AND NY CONSTITUTIONS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined retroactive application of the Foreclosure Abuse Prevention Act (FAPA) does not violate the Takings Clause of the US and NY Constitutions. The Court of Appeals has already ruled that retroactive application of FAPA does not violate due process or the Contract Clause:

“Those who do business in [a] regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end” … Federal Natl. Mtge. Assn. v Marshall, 2026 NY Slip Op 00946, Third Dept 2-19-26

 

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THIS LAWSUIT BY AN EMPLOYER AGAINST AN EMPLOYEE WHO ALLEGEDLY USED PLAINTIFF’S PROPRIETARY INFORMATION AFTER RESIGNING PRESENTS FACT-SPECIFIC ISSUES IN THE CONTEXT OF RESTRICTIVE COVENANTS IN THE EMPLOYMENT CONTRACT, COPYRIGHT LAW (PRE-EMPTION OF STATE LAW CLAIMS), TRADE SECRETS, AND THE PROPRIETY OF A PRELIMINARY INJUNCTION; ALL OF THESE COMPLEX ISSUES CANNOT BE FAIRLY SUMMARIZED HERE; THE DECISION IS WORTH CONSULTING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Copyright Act pre-empted some but not all of plaintiff’s breach of confidentiality and breach of employment contract claims, defendants’ cross-motions to dismiss sounding in unfair competition should not have granted; the complaint stated a cause of action for unfair competition based on misappropriation of proprietary information; the complaint stated a cause of action for violation of a restrictive covenant prohibiting disclosure of trade secrets; the record was insufficient to support Supreme Court’s ruling that plaintiff engaged in overreaching to obtain the restrictive covenants; and plaintiff’s motion for a preliminary injunction should have been granted. These complex, fact-specific issues cannot be fairly summarized here. With regard to pre-emption and the preliminary injunction, the court wrote:

“Section 301 of the Copyright Act preempts a state law claim if: ‘(i) the work at issue comes within the subject matter of copyright and (ii) the right being asserted is equivalent to any of the exclusive rights within the general scope of copyright'” … . Section 106 of the Copyright Act provides copyright owners the exclusive rights, among other things, to reproduce a copyrighted work, to prepare derivative works, to distribute copies of the work to the public, and to display the work publicly … . “A state law right is equivalent to one of the exclusive rights of copyright if it may be abridged by an act which, in and of itself, would infringe one of the exclusive rights” … . A claim is not equivalent “if an extra element is required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action,” and in such circumstances, there is no preemption … . Here, contrary to the defendants’ contentions, the plaintiff sufficiently alleged an extra element—violation of a duty of confidentiality and breach of the employment agreement—in addition to acts of reproduction, adaptation, performance, distribution, or display, that renders the state right qualitatively distinct from the federal right, thereby foreclosing preemption … . * * *

To obtain a preliminary injunction, the moving party must establish, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in his or her favor” (… see CPLR 6301). Here, the plaintiff showed that trade secrets existed and established a likelihood of success on the merits … . Premium Prods., Inc. v O’Malley, 2026 NY Slip Op 00918, Second Dept 2-18-26

Practice Point: Consult this decision for insight into the wide range of issues raised by the allegation that a former employee has appropriated and used the employer’s proprietary information after resigning.​

 

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