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DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL WAS NOT KNOWING, INTELLIGENT AND VOLUNTARY; NEW HEARINGS AND TRIAL ORDERED; CRITERIA EXPLAINED IN SOME DETAIL (FIRST DEPT).

The First Department, ordering new hearings and a new trial, determined defendant’s waiver of his right to counsel was not knowing, voluntary and intelligent:

Defendant’s criminal history, which included drug possession and sale convictions dating back to 1992, and his in-court remarks regarding his history of substance abuse issues and present drug use constituted a “red flag” which should have triggered at least a brief inquiry into defendant’s mental capacity and comprehension of the proceedings … . The record also does not “affirmatively disclose” that the court “delved into [] defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” … . As the trial judge was only assigned to defendant’s case about a month before trial, this was not a case where the judge “had numerous opportunities to see and hear defendant firsthand” to evaluate his knowledge and familiarity with the criminal justice system … .

Moreover, the court’s colloquy did not “accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” … . Although defendant correctly recited the charges against him, he also suggested that he could get convicted of additional charges, and the record does not reflect that he was ever informed of the potential aggregate sentence he faced after trial … . The court reminded defendant that he was “not trained as a lawyer” and did not “understand about cross-examination,” so it was “dangerous” and not in his best interests to proceed pro se; these “brief, generalized warnings do not satisfy the requirement for a searching inquiry” … . “The court failed to warn defendant about the numerous pitfalls of representing himself before and at trial, such as unfamiliarity with legal terms, concepts, and case names; the potential challenges of cross-examining witnesses and delivering an opening statement and summation as a pro se criminal defendant” … . People v Rivera, 2025 NY Slip Op 07231, First Dept 12-23-25

Practice Point: Consult this decision for insight into what a judge must explain to a defendant seeking to waive the right to counsel.

 

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A CONTRACT (A MEMORANDUM OF UNDERSTANDING OR “MOU”) WHICH PURPORTED TO BIND CURRENT AND FUTURE TOWN OFFICIALS TO A REZONING REQUEST FOR A REAL ESTATE DEVELOPMENT PROJECT VIOLATED THE “TERM LIMITS DOCTRINE” AND WAS THEREFORE UNENFORCEABLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a three-judge concurrence, determined that a memorandum of understanding (MOU) which purported to bind current and future municipal officials to plaintiff’s rezoning request for a real estate development project violated the term limits doctrine and was unenforceable:​

“The term limits rule prohibits one municipal body from contractually binding its successors in areas relating to governance unless specifically authorized by statute or charter provisions to do so” … . It recognizes that “[e]lected officials must be free to exercise legislative and governmental powers in accordance with their own discretion and ordinarily may not do so in a manner that limits the same discretionary right of their successors” … . The doctrine thus instructs “that where a contract ‘involves a matter of discretion to be exercised by the [municipal body,] unless the statute conferring power to contract clearly authorizes th[at body] to make a contract extending beyond its own term, no power . . . so to do exists’ ” … . The term limits doctrine reaches only “matters relating to governmental or legislative functions” … and does not apply where the municipality is “acting in its proprietary capacity” … . * * *

… [W]e conclude that by entering into the MOU, the Town Board violated the term limits doctrine by purporting to “limit” a “discretionary right of [its] successors,” rendering the MOU invalid and unenforceable … . Absent an enforceable agreement, plaintiff’s contractual claims fail as a matter of law. Hudson View Park Co. v Town of Fishkill, 2025 NY Slip Op 07080, CtApp 12-18-25

Practice Point: Here an attempt to bind current and future municipal officials to a rezoning request for a real estate development project was deemed unenforceable because it violated the “term limits doctrine.” Consult this opinion for insight into how the “term limits doctrine” is applied.​

 

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THE ADMINISTRATIVE LAW JUDGE WENT AHEAD WITH THE DRIVER’S LICENSE REVOCATION HEARING IN THE ABSENCE OF THE OFFICERS WHO ARRESTED THE DRIVER FOR DWI; THE DRIVER’S ARGUMENT HE WAS DENIED DUE PROCESS BECAUSE HE WAS UNABLE TO CROSS-EXAMINE THE OFFICERS WAS REJECTED; THE DRIVER HAD SUBPOENAED THE OFFICERS BUT CHOSE NOT TO USE THE CPLR 2308 PROCEDURE FOR ENFORCEMENT OF THE SUBPOENAS; THE AVAILABILITY OF THE ENFORCEMENT PROCEDURE WAS DEEMED “SUFFICIENT PROCESS” (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Wilson, determined a driver, Monaghan, whose license was automatically suspended when he refused to submit to a chemical test at the time he was arrested for DWI, was not denied due process rights when the Department of Motor Vehicles (DMV) Administrative Law Judge (ALJ) revoked his license despite the arresting officers’ failure to appear at the revocation hearing. Monaghan had subpoenaed the officers and argued he was denied his right to cross-examine them. The Court of Appeal noted that Monaghan could have sought to enforce the subpoenas but chose not to. The Court found that the procedure for enforcement of subpoenas is not unduly burdensome. Therefore requiring Monaghan to use that procedure to exercise his right to cross-examine the officers does not amount to a denial of due process:

… [W]e reject the contention that Mr. Monaghan’s was deprived of his due process right to cross-examine the Troopers. His private interest in retaining his driver’s license and the government’s interest in public safety are both significant. The due process analysis, here, turns on the benefit and burden of requiring a motorist to seek judicial enforcement of a subpoena. Mr. Monaghan chose not to avail himself of the process set forth in CPLR 2308 (b). The process of applying to enforce a nonjudicial subpoena is not so unduly burdensome as to constitute a deprivation of due process of law. Our holding is consistent with appellate courts’ decisions rejecting due process challenges in other types of administrative proceedings where the petitioner has not attempted to enforce a subpoena … . It is undisputed that Mr. Monaghan did not seek enforcement, nor did he request an adjournment to do so. Matter of Monaghan v Schroeder, 2025 NY Slip Op 06959, CtApp 12-16-25

Practice Point: Here the officers who arrested the driver for DWI did not appear at the license revocation hearing. The driver argued his inability to cross-examine the officers deprived him of due process of law. However, the driver had subpoenaed the officers. He could have used the CPLR 2308 (b) procedure for enforcing the subpoenas but chose not to. The availability of the enforcement procedure was deemed sufficient process.

 

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PLAINTIFF, WHO WAS HIRED BY DEFENDANT TEMPLE AS A “FULL TIME JEWISH EDUCATOR,” WAS FIRED AFTER WRITING A BLOG POST CRITICIZING ISRAEL AND ZIONISM; PLAINTIFF SUED ALLEGING HER FIRING WAS A VIOLATION OF THE LABOR LAW; THE COURT DID NOT ADDRESS THE LABOR-LAW-VIOLATION THEORY FINDING THAT THE “MINISTERIAL EXCEPTION” PRECLUDED THE APPLICATION OF EMPLOYMENT DISCRIMINATION LAWS TO THE RELATIONSHIP BETWEEN A RELIGIOUS INSTITUTION AND ITS MINISTERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over two concurrences, determined the ministerial exception precluded this employment discrimination action brought by plaintiff, a “full time Jewish educator” employed by the Westchester Reform Temple. Plaintiff was fired after writing a blog post criticizing Israel and Zionism. She alleged her firing was a violation of Labor Law 201-d (2) which prohibits an employer from taking adverse action against an employee based on legal “recreational activities.” The court did not address the viability of the Labor-Law theory. The court held that plaintiff’s lawsuit was precluded by the ministerial exception, which precludes application of employment discrimination laws to relationships between a religious institution and its ministers:

We need not resolve today questions such as whether the [Labor Law 201-d (2)] covers blogging specifically or public expression generated during any protected activity, because the ministerial exception dispositively bars Plaintiff’s claim. That exception “precludes application of [employment discrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers” … . Requiring a religious institution “to accept or retain an unwanted minister, or punishing [them] for failing to do so” both “infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments” and “violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions” … . * * *

Defendants invoked the ministerial exception here as grounds for dismissal on a CPLR 3211 (a) (1) motion. Such a motion “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Defendants rely on Plaintiff’s offer letter, which is appended as an exhibit to the motion to dismiss. It states that Plaintiff was responsible for guiding the development of programs such as “Shabbat, Havdalah, and other teen led events and initiatives”; planning, supporting, and attending “Confirmation” experiences; and supporting the “Rabbi’s Table initiative.” In her fifteen weekly hours of teaching, she was responsible for “Chevruta (1:1 tutoring for our learners),” “Pre-bimah tutoring,” and “Parsha of the week.” And she was responsible for furthering the Temple’s “mission,” including by “support[ing] the development of a strong Jewish identity” and “bringing Torah to life and inspiring Jewish dreams.” Sander v Westchester Reform Temple, 2025 NY Slip Op 06958, CtApp 12-16-25

Practice Point: The “ministerial exception” precludes the application of employment discrimination laws to the relationship between a religious institution and its ministers. Here the ministerial exception precluded a suit alleging plaintiff was fired from her teaching job at the defendant temple for a blog post criticizing Israel and Zionism.

 

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REMITTAL IS NECESSARY BECAUSE THE SORA RISK-LEVEL-ASSESSEMENT WAS NOT SUPPORTED IN THE RECORD BY FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY THE CORRECTION LAW; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THAT AN AVAILABLE GROUND FOR A DOWNWARD DEPARTURE WAS NOT RAISED (THIRD DEPT).

The Third Department, reversing County Court, determined (1) appellate review of the SORA risk-level assessment was precluded by the judge’s failure to place on the record its findings of fact and conclusions of law as required by the Correction Law, and (2) defendant did not receive effective assistance of counsel in that there was a ground for a downward departure which was not raised. Defendant was assessed 30 points based on a prior conviction for endangering the welfare of a child. However there was no sexual offense involved in that conviction and a downward departure was therefore possible:

“The failure to include the necessary findings prevents this Court from conducting a meaningful appellate review of defendant’s designation as a risk level two sex offender and would, alone, require remittal for County Court to comply with the statute” (… see Correction Law § 168-n [3] …). * * *

… County Court was required to assess 30 points under risk factor 9 based upon defendant’s undisputed prior conviction of endangering the welfare of a child, “without regard to whether the underlying offense involved conduct that is sexual in nature” … . This is because “[t]he Board decided to treat endangering the welfare of a child as if it were a sex crime because it generally involves sexual misconduct, especially when it is part of a plea bargained disposition” … . However, the risk assessment guidelines also provide that, “[w]here a review of the record indicates that there was no such [sexual] misconduct, a departure may be warranted” … . People v Pribble, 2025 NY Slip Op 06936, Third Dept 12-11-25

Practice Point: If a SORA risk-level-assessment is not supported by findings of fact and conclusions of law in the record appellate review is not possible and remittal is required.

Practice Point: If, as here, there is an available ground for a downward departure which is not raised, the defendant did not receive effective assistance of counsel.

 

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THE ALLEGATION THE LAW ENFORCEMENT DEFENDANTS PRESENTED FALSE TESTIMONY DURING PLANTIFFS’ PROSECUTIONS STATED A VALID FOURTEENTH AMENDMENT DUE PROCESS VIOLATION CAUSE OF ACTION PURSUANT TO 42 USC 1983 (SECOND DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiffs’ cause of action alleging defendants violated 42 USC 1983 by presenting false testimony during the course of plaintiffs’ prosecution should not have been dismissed:

Supreme Court erred in granting that branch of the defendants’ motion which was for summary judgment dismissing so much of the cause of action alleging civil rights violations pursuant to 42 USC § 1983 as was predicated on a violation of the plaintiffs’ due process rights enumerated in the Fourteenth Amendment of the United States Constitution insofar as asserted against the individual defendants. The plaintiffs’ allegations that, during the course of their prosecution, the individual defendants presented false testimony were governed by the Fourteenth Amendment … . Thus, contrary to the defendants’ contention, a due process analysis was appropriate … . Batista v City of Yonkers, 2025 NY Slip Op 06592, Second Dept 11-26-25

Practice Point: An allegation that law enforcement officers presented false testimony during plaintiffs’ prosecutions stated a 42 USC 1983 violation-of-due-process cause of action.

 

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THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) WAS PROPERLY APPLIED RETROACTIVELY IN THIS CASE; RETROACTIVE APPLICATION DOES NOT VIOLATE THE DUE PROCESS OR CONTRACT CLAUSES OF THE UNITED STATES CONSTITUTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, determined the Foreclosure Prevention Abuse Act applied retroactively to the case before it. Retroactive application does not violate the Due Process or Contract Clauses of the United States Constitution:

We therefore hold that the provisions apply retroactively. Accordingly, because “a final judgment of foreclosure and sale has not been enforced” in this action … , FAPA §§ 4, 7, and 8 govern here by their terms. * * *

To comport with substantive due process, a statute’s retroactive application must be supported by “a legitimate legislative purpose furthered by rational means” … . That is, “the retroactive application of the legislation” must “itself [be] justified by a rational legislative purpose” … .

… FAPA’s legislative history identifies certain “abus[ive]” litigation practices engaged in by mortgage lenders and noteholders as the animating force behind FAPA’s enactment: the sponsors’ memoranda state “legislat[ive] find[ings]” to this effect … . In light of the legislature’s determination that these “abuses” should be curtailed, it is rational for FAPA to apply retroactively to shield as many borrowers as possible from those practices. Moreover, insofar as FAPA’s relevant provisions clarify or change the manner in which the six-year statute of limitations applies, FAPA’s retroactive application also rationally advances “the strong public policy favoring finality, predictability, fairness and repose” in human affairs … . Van Dyke v U.S. Bank, Natl. Assn., 2025 NY Slip Op 06537, CtApp 11-25-25

 

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IN ANSWERING TWO CERTIFIED QUESTIONS FROM THE SECOND CIRCUIT, THE COURT OF APPEALS HELD THAT THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIED RETROACTIVELY AND DID NOT VIOLATE SUBSTANTIVE OR PROCEDURAL DUE PROCESS UNDER THE NEW YORK CONSTITUTION (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Wilson, answering two certified questions from the Second Circuit, determined (1) the Foreclosure Abuse Prevention Act (FAPA) took effect immediately upon enactment and applied to all foreclosure actions in which a final judgment of foreclosure has not been enforced, and (2), retroactive application of the statute does not violate substantive or procedural due process rights under the New York Constitution:

… FAPA Section 7 applies to “foreclosure actions commenced before the statute’s enactment.” FAPA achieved its clear purpose with straightforward statutory text. The portion of Section 7 of FAPA at issue in this case is codified at CPLR 213 (4) (b):

“[A] defendant shall be estopped from asserting that the period allowed by the applicable statute of limitation for the commencement of an action upon the instrument has not expired because the instrument was not validly accelerated prior to, or by way of commencement of a prior action, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated.”

FAPA Section 10 then provides that “[t]his act shall take effect immediately and shall apply to all actions commenced on[, as relevant here, a residential mortgage loan agreement,] in which a final judgment of foreclosure and sale has not been enforced.” Article 13 LLC v Ponce De Leon Fed. Bank, 2025 NY Slip Op 06536, CtApp 11-25-25

 

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THE APPROPRIATE TEST FOR WHETHER THE POLICE HAD “REASONABLE SUSPICION” SUFFICIENT FOR A TRAFFIC STOP BASED ON AN ANONYMOUS TIP IS THE “TOTALITY OF THE CIRCUMSTANCES;” THE CRITERIA INCLUDE THE AGUILAR-SPINELLI RELIABILITY AND BASIS OF KNOWLEDGE FACTORS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, applied the “totality of the circumstances” test and determined the police had probable cause to stop defendant’s car based upon an anonymous tip. The anonymous 911 caller told the dispatcher he was calling from a specified intersection and he had just been shot by two Black males in a white Mercedes. The caller said he knew the perpetrators and gave the dispatcher the address of one of them. A police officer four blocks away in a patrol car spotted a White Mercedes 30 to 60 seconds after the dispatcher broadcasted the report and stopped it. After the officer confirmed the address on the driver’s license was the address provided by the 911 caller, the officer asked if there were anything in the car he should know about. After the driver said “no, you can check the car” the officer saw a handgun and smelled gun powder through a gap in the locked glove compartment:

We have continued to apply the principles of Aguilar-Spinelli in the probable cause context … after the United States Supreme Court abandoned it in favor of the totality-of-the-circumstances approach (see Illinois v Gates, 462 US 213, 233 [1983] …), in recognition that Aguilar-Spinelli is more protective of our citizens’ rights under the State Constitution … . At issue here … is whether that same analysis is required for the lesser intrusion of an investigatory stop requiring reasonable suspicion. * * *

… [W]e now hold that the appropriate test is whether an anonymous tip is sufficiently reliable to provide reasonable suspicion under the totality of the circumstances. While this approach involves an analysis of the Aguilar-Spinelli reliability and basis of knowledge factors, “allowance must be made in applying them for the lesser showing required” to meet the reasonable suspicion standard .. . .

Here, the totality of the circumstances establishes that there was reasonable suspicion to stop defendant’s vehicle. The anonymous informant used the 911 system to report that he had “just been shot,” necessarily claiming personal knowledge of the crime. The caller also provided a description of the alleged shooter, the make and color of the shooter’s vehicle, and his location. The police were able to corroborate that information, within one minute of receiving the dispatch and within a block from the reported location, when they observed a car and suspect matching the description provided. The contemporaneous nature of the report is substantial here and weighs in favor of the caller’s veracity.

The police were duty-bound to investigate the radio report of a shooting, and they could not ignore their own contemporaneous observation of a vehicle matching the caller’s description and location. … [O]ur review of the reasonableness of the officer’s conduct is limited to the information known to the police at the time of the vehicle stop. … [T]here is record support for the affirmed finding of reasonable suspicion. People v Leighton R., 2025 NY Slip Op 06534, CtApp 11-25-25

Practice Point: Consult this opinion for insight into the application of the “totality of the circumstances” test to determine whether there was “reasonable suspicion” sufficient to justify a traffic stop based on an anonymous tip.

 

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DEFENDANT’S FACIAL CONSTITUTIONAL CHALLENGE TO THE CONCEALED CARRY STATUTE AS IT EXISTED AT THE TIME OF HIS INDICTMENT (A PROVISION OF THE STATUTE WAS DECLARED UNCONSTITUTIONAL BY THE US SUPREME COURT JUST PRIOR TO DEFENDANT’S INDICTMENT) SURVIVED HIS WAIVER OF APPEAL; ALTHOUGH DEFENDANT NEVER APPLIED FOR A FIREMARM LICENSE, HE HAS STANDING TO CHALLENGE THE STATUTE BASED ON HIS CONVICTION FOR ATTEMPTED POSSESSION OF A WEAPON; THE CHALLENGED PORTION OF THE STATUTE IS SEVERABLE FROM THE OTHER PROVISIONS; DEFENDANT WAS UNABLE TO DEMONSTRATE THE UNCONSTITUTIONAL PROVISION RENDERED THE STATUTE UNCONSTITUTIONAL UNDER ALL CONCEIVABLE CIRCUMSTANCES AND THEREFORE DID NOT DEMONSTRATE FACIAL UNCONSTITUTIONALITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a three-judge concurrence, determined: (1) the defendant’s challenge to the facial constitutionality of the state’s firearm licensing scheme survived his waiver of appeal; (2) the defendant, who was convicted of attempted criminal possession of a weapon, has standing to challenge the state’s firearm licensing scheme as it was codified at the time of his indictment; (3) although one of the requirements for licensure in the relevant statute (Penal Law 400.00(2)(f) was declared unconstitutional by the US Supreme Court just before defendant’s indictment, that requirement is severable and did not render the entire statutory scheme unconstitutional. In 2022 the US Supreme Court, in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1, found unconstitutional the statute’s “proper cause” language, which required an individual seeking a concealed-carry license for a pistol or revolver to “demonstrate a special need for self-protection distinguishable from that of the general community,” Although since removed, the “proper cause” language remained in the statute at the time of defendant’s indictment:

We hold that a facial constitutional challenge such as the one presented here likewise falls into the narrow class of non-waivable appellate claims. Hornbook law underscores the very high bar for this type of challenge: a litigant must contend that “in any degree and in every conceivable application, the law suffers wholesale constitutional impairment” … . In the rare circumstances where a facial challenge is successful, “the law is invalid in toto—and therefore incapable of any valid application” … , and thus the State will lack authority to prosecute or punish the defendant or anyone else for the conduct at issue. … [A]facial challenge goes squarely to the “fairness in the process itself” … , and transcends an individual defendant’s concerns to implicate “a larger societal interest in its correct resolution” …  . Accordingly, a waiver that precludes appellate review of a facial constitutional challenge to a criminal statute should not be enforced. * * *

Both the People and the Attorney General argue that the defendant lacks standing to challenge the constitutionality of the licensing scheme because he never applied for a firearm license. We disagree. * * *

We find the “proper cause” requirement severable. The text and structure of the licensing scheme evince a clear legislative intent to regulate the lawful purchase, possession, and use of firearms. The licensing scheme is detailed and multi-faceted; the “proper cause” provision was just one aspect of a much broader scheme that includes a variety of distinct requirements. People v Johnson, 2025 NY Slip Op 06528, Ct App 11-24-25

Practice Point: Consult this decision for insight into when a challenge to the constitutionality of a statute will survive a waiver of appeal, when a defendant has standing to challenge the constitutionality of a criminal statute, when a portion of a challenged statute will be deemed severable from the other provisions, and whether an unconstitutional statutory provision renders the entire statute unconstitutional in every conceivable circumstance (a requirement for facial unconstitutionality).

 

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