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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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SIX TOWN OF NEWBURGH VOTERS CHALLENGEDTHE TOWN’S AT-LARGE ELECTION SYSTEM UNDER THE VOTER DILUTION STATUTE WHICH PROHIBITS THE DILUTION OF VOTES OF MEMBERS OF A PROTECTED CLASS, HERE BLACKS AND HISPANICS; THE TOWN RESPONDED WITH A CONSTITUTIONAL CHALLENGE TO THE VOTER DILUTION STATUTE; THE COURT OF APPEALS HELD THE TOWN, A GOVERNMENTAL ENTITY CREATED BY THE STATE LEGISLATURE, COULD NOT CHALLENGE A STATE STATUTE AS FACIALLY UNCONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, affirming the Appellate Division, determined the Town of Newburgh, as a governmental entity created by the state legislature, could not challenge the facial constitutionality of the vote dilution provision of the New York Voting Rights Act (NYVRA) (codified at Election Law 17-200 et seq. Six Newburgh voters sued the Town under Election Law 17-206 which prohibits election methods which dilute the votes of members of a protected class. It was alleged that the at-large election system diluted the power of Black and Hispanic residents such that they were not represented on the Town Board. The Town, in response, asserted a facial constitutional challenge to the dilution provision, Election Law 17-206:

… [A] legislative entity’s challenge to a State law must be “examined with a view towards the relief sought” … . Newburgh seeks invalidation of the entire vote-dilution provision under Election Law § 17-206. For a facial constitutional challenge, principles of “judicial restraint” … counsel strongly against permitting subordinate units of state government from using the judiciary to second-guess the wisdom of enacted legislation. A municipality’s authority to raise a challenge to a State law is at its lowest ebb when that challenge is a facial constitutional challenge, seeking to invalidate a statute in all possible applications, not merely because it allegedly placed the particular municipality in an allegedly untenable position. … “[O]ur capacity rule reflects a self-evident proposition about legislative intent: the ‘manifest improbability’ that the legislature would breathe constitutional rights into a public entity and then equip it with authority to police state legislation on the basis of those rights” … . Clarke v Town of Newburgh, 2025 NY Slip Op 06359, CtApp 11-20-25

Practice Point: Consult this opinion for a discussion of the circumstances under which a town, which is a governmental entity created by the state legislature, can challenge the constitutionality of a state statute. Here a town’s challenge to the facial constitutionality of the voter dilution provision of the Election Law was rejected on the ground the state legislature did not grant towns the right to police state legislation.

 

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DEFENDANT DID NOT ADMIT HE INTENDED TO COMMIT A CRIME IN THE BUILDING HE ENTERED AND REMAINED UNLAWFULLY; THEREFORE THE PLEA ALLOCUTION DID NOT ESTABLISH THE ELEMENTS OF ATTEMPTED BURGLARY; DEFENDANT’S VIOLATION OF A STAY-AWAY ORDER IS NOT ENOUGH; PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s plea to attempted burglary, determined defendant’s plea allocution negated an essential element of the offense, thereby calling into question the voluntariness of the plea: Burglary requires the intent to commit a crime while unlawfully entering or remaining in a building. Defendant did not admit he intended to commit a crime in the building. The fact that he violated a stay-away order by entering the building was not sufficient:

During the plea allocution the court asked defendant if it was true that he knowingly entered and remained unlawfully at the premises, which is a dwelling, and attempted to commit a crime inside. Defendant responded, “That wasn’t my intent, but I did remain unlawfully.” Defense counsel then stated “Yes, there was a protective order which he violated.” The court then asked defendant, “That was with the intent to violate the order of protection, is that right”? Defendant responded, “Yes.”

A key element of burglary is establishing the defendant’s intent in entering or remaining unlawfully in a building to commit a crime therein … . The violation of a stay-away provision in an order of protection, alone, cannot, without more, be used to establish the requisite state of mind to elevate criminal trespass to a burglary … .

Once defendant denied his intent to commit a crime within the premises, the court was required to inquire further to ensure that defendant’s guilty plea was, in fact, knowing and voluntary … . As the People concede, given that the court failed to inquire and improperly accepted the guilty plea, the plea must be vacated … . People v Gee, 2025 NY Slip Op 05924, First Dept 10-28-25

Practice Point: To constitute burglary, the defendant must intend to commit a crime when entering or remaining in a building. It is not enough that, by entering the building, the defendant violated a stay-away order. The defendant must have intended to commit a crime in the building.

 

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THE DEFENSE WAS TIMELY PROVIDED WITH IMPEACHMENT INFORMATION REGARDING AN ARRESTING OFFICER; THE FACT THAT AN ADDITIONAL DOCUMENT WITH THAT INFORMATION WAS PROVIDED AFTER THE CERTIFICATE OF COMPLIANCE (COC) WAS FILED, DID NOT RENDER THE PROSECUTION UNTIMELY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a two-judge dissent, determined the prosecution’s failure to turn over an Internal Affairs Bureau (IAB) report which was relevant to the credibility of one of the arresting officers (Congedo) before the filing of the certificate of compliance (COC) with the discovery timetable did not render the prosecution untimely. The opinion is fact-specific. The prosecution had timely alerted the defense to a federal lawsuit based on the alleged misbehavior of the arresting officer described in the IAB report. The majority concluded the allegations in the lawsuit constituted timely notice of the relevant information in the IAB report. The dissent disagreed because the report included information not referenced in the federal lawsuit:

… CPL 245.20 (1) (k) (iv) does not require production of a document just because it provides additional information not in other impeachment material. The question instead is whether the document “tends to . . . impeach the credibility of a testifying prosecution witness” …  Here, the IAB report does not. Our conclusion is not based on any prejudice analysis, but on application of the relevant statutory language. * * *

Because the IAB report did not contain any separate allegations of misconduct against Congedo nor any support for the amended complaint’s allegations as they pertained to Congedo, it did not have any “tend[ency] to . . . impeach” her credibility (CPL 245.20 [1] [k] [iv]). …

… [T]he IAB report itself has no impeachment value. This is not a prejudice consideration … . Rather, CPL 245.20 (1) (k) (iv)’s “tends to . . . impeach” standard inserts considerations of evidentiary value into the disclosure requirement itself. Nothing in CPL 245.20 (1) (k) (iv) additionally requires the People to disclose every single document referencing impeachment material subject to disclosure based solely on that reference. People v Fuentes, 2025 NY Slip Op 05872, CtApp 10-23-25

Practice Point: Re: discovery of information which may be used to impeach an arresting officer, the prosecution is not required to turn over every document which references the impeachment material. Here the defense was given timely notice of a federal lawsuit which included the impeachment material. The fact that a report which referenced the impeachment material was not turned over to the defense until after the certificate of compliance (COC) was filed did not invalidate the COC.

 

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AFTER BREAKING UP A FIGHT BETWEEN TWO MEN ON THE STREET AND HANDCUFFING THEM, THE POLICE QUESTIONED DEFENDANT WITHOUT GIVING THE MIRANDA WARNINGS; DEFENDANT’S ADMISSION HE HAD PUNCHED THE VICTIM SHOULD HAVE BEEN SUPPRESSED; THE ERROR WAS HARMLESS HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined defendant was subjected to custodial interrogation when he was questioned on the street after he was handcuffed. Because the Miranda warnings were not given, defendant’s admission to punching the victim should have been suppressed. However the error was harmless in light of the other evidence, including a video. The police approached defendant and the victim, who were fighting, on the street. Both men were handcuffed and then questioned:

… [I]t is not dispositive that defendant was questioned in the immediate aftermath of the altercation, while the officers were still determining whether a crime had occurred—circumstances Supreme Court seemingly relied on in deeming the encounter a “classic case of investigatory questioning” that did not require Miranda warnings. Our case law draws no categorical distinction between interrogation and so-called investigatory questioning. Interrogation is almost definitionally investigatory in nature. And while we have recognized a “distinction between coercive interrogation and permissible street inquiry” … , the most salient difference between these categories is not when the questioning takes place, but the presence or absence of custody … . As we have explained, “routine police investigation of suspicious conduct on the street generally does not entail a significant deprivation of freedom which would require Miranda warnings” … . Absent “both the elements of police ‘custody’ and police ‘interrogation,’ ” there is no “constitutional requirement that the police recite interrogation warnings when they direct questions or comments at members of the public or solicit information and assistance” … . But where, as here, investigatory questions are directed to a person who is in custody, under circumstances police should know are likely to yield an incriminating response, Miranda warnings are required. People v Robinson, 2025 NY Slip Op 05871, CtApp 10-23-25

Practice Point: Here the police broke up a street fight, handcuffed both men, and then questioned them. Even though the police were still investigating what happened when defendant was questioned, defendant was “in custody” and was being “interrogated,” mandating the Miranda warnings.

 

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THE COMPLAINT ALLEGING THE NYC PUBLIC EDUCATION SYSTEM DISCRIMINATES AGAINST BLACK AND LATINO STUDENTS FAILED AS A MATTER OF LAW (CT APP). ​

The Court of Appeals, reversing (modifying) the Appellate Division, in a full-fledged opinion by Judge Garcia, over a partial dissent and a dissenting opinion, determined the complaint alleging the NYC public education system discriminates against Black and Latino students failed as a matter of law. The opinion is too complex to fairly summarize here:

Plaintiffs allege that the New York City public education system, through its admissions and screening policies, curriculum content, and lack of diversity among the teacher workforce, discriminates against and disproportionately affects Black and Latino students, leading to unequal educational opportunities and negative outcomes for those students. Plaintiffs further allege that these practices and policies deprive Black and Latino students of a sound basic education in contravention of the Education Article of the State Constitution (NY Const, art XI, § 1), denies them equal protection of the laws (NY Const, art I, § 11), and denies them access to educational facilities in violation of the New York State Human Rights Law (Executive Law § 296 [4]). Although plaintiffs identify troubling aspects of New York City’s public education system, the claims as presented in the complaint fail as a matter of law. IntegrateNYC, Inc. v State of New York, 2025 NY Slip Op 05870, CtApp 10-23-25

Practice Point: Consult this opinion for a detailed discussion of the issues raised by a claim that a public school system discriminates against minority students. Here the court acknowledged the complaint identified “troubling aspects” of New York City’s public education system, but held the causes of action failed as a matter of law.

 

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THE DEFENDANT, PERSONALLY, MUST BE GIVEN THE OPPORTUNITY TO CONTROVERT THE PROSECUTION’S PREDICATE FELONY ALLLEGATIONS, AND TO CHALLENGE THE CONSTITUTIONALITY OF THE PREDICATE FELONY SENTENCING SCHEME, EVEN WHEN DEFENSE COUNSEL CONCEDES THE ISSUE; MATTER REMITTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, remitted the matter to give defendant the opportunity to personally controvert the prosecution’s predicate felony allegations, and to challenge the constitutionality of the predicate felony sentencing scheme, despite the defense attorney’s concession of the issue:

… [D]efendant’s challenge to his sentence has merit. The court denied defendant his statutory right to personally controvert the prosecution’s predicate felony allegations when it refused to consider his specific challenge and instead accepted defense counsel’s concession of the issue. Since the court summarily declared defendant a predicate felon and imposed an enhanced sentence, we modify and remit to Supreme Court, where defendant may controvert the predicate felony allegations and have an opportunity to assert his separate constitutional challenge to the Criminal Procedure Law’s predicate felony sentencing scheme. * * *

… Based on the full text of CPL 400.15 (3) and its placement in the predicate sentencing statutory scheme, we conclude that a court must ask the defendant personally if they wish to controvert any allegations in the prosecution’s statement. A totality of factors support this conclusion. First, CPL 400.15 (3) requires that the defendant receive a copy of the statement and that the court ask them if they wish to controvert any allegation contained therein. This procedure thus mandates that the defendant personally has notice of the allegations against them and a corresponding opportunity to be heard. Second, CPL 400.15 (3) refers to the defendant using personal pronouns, which is a deviation from the rest of the statute’s impersonal diction … .

Third, given the significant consequences of the decision to controvert and the information relevant to making that decision, it is unlikely that the legislature intended for defense counsel to be able to refuse to controvert in the face of the defendant’s opposition, without any further inquiry by the court. Indeed, the failure to controvert results in an automatic sentence enhancement in the present case and in any future sentences and therefore has lifetime ramifications … . …

These factors, considered together, make clear that the term “defendant,” as written in CPL 400.15 (3), refers to the defendant personally. In these key ways, CPL 400.15 (3) differs from provisions of the CPL that refer to the “defendant” interchangeably with “the defense,” without additional language suggesting that the legislature requires a court to direct its inquiry to the defendant. People v Wright, 2025 NY Slip Op 05869, CtApp 10-23-25

Practice Point: A defendant, personally, must be given the opportunity to controvert the prosecution’s predicate felony allegations, and to challenge the constitutionality of the predicate felony sentencing scheme, even in the face of defense counsel’s concession of the issue. Here the matter was remitted for that purpose​.

 

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DEFENDANT RAISED QUESTIONS ABOUT THE VOLUNTARINESS OF HIS PLEA TO FIRST DEGREE MURDER SUFFICIENT TO WARRANT A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant had raised questions about the voluntariness of his plea to first degree murder (for killing his parents) which required a hearing on his motion to vacate his plea. Defendant was sentenced to life imprisonment without parole. In his motion to vacate his plea, defendant alleged his attorneys told him that the death penalty for first degree murder was going to be overturned and thereafter his sentence could be reduced. Defendant also alleged his guilty plea was induced in part by his cousin’s offer to pay him $10,000 if he pled guilty and renounced any claim to his parents’ estate:

According to defendant, after he had received the offer of payment, he remained reticent to accept the plea offer; however, by his telling, consideration of that payment together with his averment as to trial counsel’s misadvice of a potential reduced sentence ultimately persuaded him to accept the offer to plead guilty and be sentenced to life without parole. In support of that account, motion counsel and defendant’s investigator recounted trial counsel’s representation that defendant’s initial objection to accepting the plea offer diminished once the $10,000 payment had been offered. In support of defendant’s motion, he presented further evidence that $10,000 was paid to him after he entered his plea by way of two separate $5,000 checks, one of which was provided by his cousin. The evidence of that payment and the corresponding account that it influenced defendant’s deliberations as to whether to accept the plea, considered alongside the misadvice that he was purportedly provided, create an issue of fact as to whether he was subjected to something more “than the type of situational coercion faced by many defendants who are offered a plea deal” … .

All told, we find that defendant’s submissions in support of his motion are sufficient to raise an issue of fact warranting a hearing with respect to deficiencies in his representation … and the effect on the voluntariness of his plea … . …  With respect to both his claims, defendant bears the burden of establishing his entitlement to relief by a preponderance of the evidence (see CPL 440.30 [6]). As to his contention of deficient representation, defendant will bear the burden of proving that he was misadvised about the potential to have his sentence reduced in the future if he took the People’s plea offer and, but for that misadvice, there is a reasonable probability that he would have chosen to proceed to trial … . … [A]t this juncture the question “is whether defendant has made sufficient allegations to warrant an evidentiary hearing, not whether defendant has satisfied his burden of proof” … . People v Mower, 2025 NY Slip Op 05851, Third Dept 10-23-25

Practice Point: Consult this decision for insight into the allegations and proof which will be sufficient to require a hearing on whether defendant’s guilty plea was voluntarily entered in the context of a post-appeal motion to vacate the judgment of conviction.

 

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