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CONFLICTING EVIDENCE RAISED QUESTIONS OF FACT IN THIS “NEGLIGENT USE OF EXCESSIVE FORCE,” “FALSE ARREST,” AND “UNLAWFUL IMPRISONMENT” ACTION STEMMING FROM THE STREET STOP, SHOOTING AND ARREST OF THE PLAINTIFF; THE DEFENDANT TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined conflicting evidence precluded summary judgment in this civil action stemming from the street stop and arrest of the plaintiff. Although plaintiff pled guilty, which usually forecloses any argument that the arrest was not supported by probable cause, here evidence submitted the defendant transit authority raised a question of fact about probable cause. The action alleged the negligent use of excessive force (plaintiff was shot through the windshield of his vehicle), false arrest and unlawful imprisonment:

Excessive force claims are evaluated ” ‘under the Fourth Amendment’s “objective reasonableness” standard’ ” … . * * *

“Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide” … .

” ‘The fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer’s use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer’ ” … . …

Though “[t]he existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the [false imprisonment cause of action]” … , the issue of probable cause is “generally a question of fact to be decided by the jury, and should ‘be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn surrounding the arrest’ ” … . Thomas v Niagara Frontier Tr. Auth., 2025 NY Slip Op 02433, Fourth Dept 4-25-25

Practice Point: Consult this decision for an analysis of “negligent use of excessive force,” “false arrest,” and “unlawful imprisonment” causes of action at the summary-judgment stage, in the face of conflicting evidence.​

 

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THERE WAS NO PROOF DEFENDANT WAS NOTIFIED OF THE SORA RISK-LEVEL ASSESSMENT HEARING AND VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT; THE DUE PROCESS ISSUE NEED NOT BE PRESERVED FOR APPEAL BECAUSE DEFENDANT DID NOT HAVE THE OPPORTUNITY TO OBJECT; LEVEL-THREE RISK-LEVEL ASSESSMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing County Court’s level-three SORA risk-level assessment and remitting the matter, determined the People did not demonstrate defendant waived his right to be present at the virtual SORA risk-assessment hearing. The judge relied on an email from the Department of Corrections and Community Supervision stating that defendant “is waiving his right to be present in court,” which was not sufficient proof defendant was notified of the hearing and his rights and voluntarily waived his rights. Although defense counsel did not object, the issue did not require preservation for appeal because the defendant had “no practical ability to object” to the due process error:

The record does not establish that defendant was advised of the hearing date, the right to be present or of the consequences of failing to appear and/or participate. County Court’s passing remark at the outset of the hearing that defendant had been “served” and did not wish to be present did not demonstrate such advisement or the basis for finding a waiver, and defense counsel did not represent that he had provided such advisements to defendant, that defendant was aware of his rights or that defendant had “expressed a desire to forego his presence at the hearing” … .

Although the People submitted a July 19, 2022 email correspondence indicating that an order to produce defendant for the SORA hearing was sent by County Court to the facility where defendant was apparently incarcerated, the responsive email from a Department of Corrections and Community Supervision employee stated only that defendant “is waiving his right to be present in court” for the SORA hearing, which was insufficient to establish that defendant was advised of the hearing date, his right to participate remotely or the consequences of failing to appear or participate. As such, the record fails to establish that defendant voluntarily waived his right to participate in the hearing, where County Court may have had the opportunity to assess any cognitive impairment and its impact, if any, on the appropriate risk level classification. Therefore, without expressing any opinion as to the appropriate risk level, the order must be reversed and the matter remitted to County Court for a new risk level assessment hearing and a new determination, preceded by the required notice (see Correction Law § 168-n [3]). People v Santiago, 2025 NY Slip Op 02381, Thrid Dept 4-24-25

Practice Point: Here an email from the Department of Corrections stating defendant “is waiving his right to be present in court” was deemed insufficient to prove defendant was notified of the SORA risk-level-assessment hearing and voluntarily waived his right to be present, a due process violation.

Practice Point: Although defense counsel did not object to the hearing being held in defendant’s absence, the issue need not be preserved for appeal because defendant had “no practical ability to object.”

 

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THE ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH “FAILURE TO PROVIDE NECESSARY SUSTENANCE” FOR A DOG, AN A MISDEMEANOR, WAS NOT SUPPORTED BY NONHEARSAY FACTUAL ALLEGATIONS; INSTRUMENT DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the accusatory instrument charging defendant with “failure to provide necessary sustenance” for a dog was facially insufficient because no nonhearsay factual allegations supporting the charge were provided: The statute at issue is Agriculture and Markets Laws (AML) section 353:

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” … . We evaluate the accusatory instrument here under the standard applicable to a misdemeanor information. In accordance with CPL 100.40, “[a] misdemeanor information must set forth ‘nonhearsay allegations which, if true, establish every element of the offense charged’ ” … . This requirement is jurisdictional, and an accusatory instrument that falls short must be dismissed … . “[T]he test for whether a flaw in an accusatory instrument is jurisdictional is. . . whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” … . * * *

… [A]n accusatory instrument charging a violation of section 353 need not include documentation from a veterinarian, especially in those cases where the conditions are visible or palpable. The investigator did not allege any facts in support of [an alleged failure to provide veterinary care]. The investigator also failed to describe the conditions under which he first observed [the dog]—splayed in the middle of a traffic lane and barely able to move—which might have allowed for an inference that the dog was mistreated or neglected to the point of being in extremis.

In sum, the factual allegations and inferences to be drawn from the accusatory instrument are insufficient to “establish every element of the offense charged” … , that defendant deprived [the dog] of sustenance in violation of AML section 353. People v Farrell, 2025 NY Slip Op 02100 CtApp 4-10-25

Practice Point: Consult this opinion for some insight into the nature of the nonhearsay factual allegations which must be included in an accusatory instrument charging an A misdemeanor, here a violation of the Agriculture and Markets Law section 353 (failure to provide necessary sustenance for a dog).​

 

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DEFENSE COUNSEL VOUCHED FOR THE CREDIBILITY OF THE VICTIM, DID NOT OBJECT WHEN THE PROSECUTOR VOUCHED FOR THE CREDIBILITY OF THE VICTIM, AND ALLOWED EVIDENCE OF DEFENDANT’S PRIOR CRIMES TO COME IN DESPITE A SANDOVAL RULING KEEPING IT OUT; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction in this sex-offense case and ordering a new trial, determined defense counsel did not provide effective assistance. Defense counsel vouched for the credibility of the victim and allowed evidence of defendant’s prior crimes to come in, despite a Sandoval ruling keeping it out:

… [D]uring counsel’s opening statement, he commented that, in his training representing victims of sexual assault, “the first thing I had to do was believe the accuser. I didn’t have a problem with that. I mean, why would someone make up an important detail or leave out certain details and accuse someone of a crime like rape?” Not only did counsel seemingly vouch for the victim’s credibility in this first opportunity to address the jury, but he also did the same in his summation, again reminding the jury that he had represented victims of sexual assault, stating that he “start[s] by believing it. I don’t sense any ill will from [the victim]” and that he knew “a verdict of not guilty in this case is not going to make anyone happy.” … . * * *

… [D]efense counsel elicited testimony that defendant had been in and out of jail for 10 years, was a regular drug user, had sold cocaine before and was a parolee who was violating parole conditions by being out past curfew as well as consuming alcohol and cocaine … on the night of the incident. Thereafter, when defendant chose to testify as to his version of events, County Court determined that since defense counsel had questioned the friend regarding defendant having been on parole at the time of the incident and in and out of prison for 10 years, the door had been opened for the People to pursue those lines of questioning with defendant on cross-examination. * * *

Compounding these errors, during the People’s summation, the prosecutor repeatedly improperly vouched for the victim’s credibility … , without objection from defense counsel, one time going so far as to say that the victim “testified credibly, consistently, believably and authentically.” Defense counsel’s failure to object to this repeated vouching is even more problematic given his own insinuations that the victim, as a sexual assault victim, should be believed. People v Monk, 2025 NY Slip Op 01976, Third Dept 4-3-25

Practice Point: It is difficult to think of a defense trial strategy that would include vouching for the credibility of the victim in a sex offense case. It is difficult to think of a defense trial strategy that would include allowing evidence of defendant’s prior crimes, which was the subject of a Sandoval ruling keeping it out, to come in. A trial, first and foremost, is an adversarial proceeding.

 

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ALTHOUGH THE ISSUE SHOULD HAVE BEEN RAISED IN A DIRECT APPEAL, AND DESPITE DEFENDANT’S FAILURE TO RAISE THE WINNING ARGUMENT IN THE MOTION TO VACATE THE CONVICTION, THE THIRD DEPARTMENT GRANTED DEFENDANTS REQUEST TO REMOVE THE SEX OFFENDER CLASSIFICATION FROM HIS SENTENCE; THE OFFENSE OF WHICH DEFENDANT WAS CONVICTED IS NOT A REGISTRABLE OFFENSE (THIRD DEPT). ​

The Third Department, vacating defendant’s judgment of conviction and reinstating it without the sex-offender certification, determined the offense of which defendant was convicted, burglary third degree as a sexually motivated felony, is not a registrable offense under the Correction Law. The court noted that a sex-offender certification is part of the sentence and therefore should have been challenged on direct appeal. Because an appeal is no longer possible, the court accepted the motion to vacate as an appropriate mechanism for correcting the error. Although the court rejected defendant’s “ineffective assistance of counsel” argument, it still granted the relief defendant sought on the constitutional ground that defendant has a “liberty interest” in not being misclassified as a sex offender:

Although defendant did not expressly raise such grounds in his motion, we note the People’s concession at oral argument that, in advocating that defendant pursue a different procedural course to obtain the requested relief, they do not oppose the ultimate result sought by defendant — the vacatur of the provisions of his judgment certifying him as a sex offender. * * * … [B]earing in mind that no party disputes that defendant should be afforded the discrete relief that he seeks in this proceeding and that defendant’s motion broadly seeks relief pursuant to CPL 440.10 (1) (h), we believe it appropriate, in the interest of judicial economy, to address this matter now rather than require defendant to file a new motion asserting a different constitutional basis for the same relief. We therefore exercise our discretion, in the interest of justice, and grant defendant’s motion, vacate the judgment, and thereafter reinstate the judgment without the provisions thereof certifying defendant as a sex offender pursuant to SORA and requiring him to pay the $50 sex offender registration fee … . People v Richardson, 2025 NY Slip Op 01980, Third Dept 4-3-25

Practice Point: Here is a rare instance of an appellate court’s overlooking defendant’s failure to raise the sex-offender-misclassification issue on direct appeal and defendant’s failure to raise the winning constitutional argument in the motion to vacate the conviction. The reason? No one objected to the relief defendant sought, i.e. correction of the misclassification of the defendant as a sex offender. The objections were to the mechanism used to request the relief.

 

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ISSUING A RULING BEFORE FATHER COMPLETED HIS TESTIMONY IN THIS CUSTODY PROCEEDING DEPRIVED THE PARTIES OF DUE PROCESS OF LAW (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge’s issuing a ruling awarding custody to father before father’s direct testimony had been completed violated due process:

The parties, as well as the attorney for the child, share the view that Family Court improperly ended the hearing before its completion, and we agree. At a hearing on an initial custody determination, due process requires that each party be provided a full and fair opportunity to be heard … . The parties must be permitted to present evidence on their own behalf and ” ‘cross-examine . . . key witness[es]’ ” … . Aside from due process considerations, a court’s “abrupt termination of the proceedings [may] preclude[ ] a meaningful best interests analysis, leaving the court . . . with insufficient information upon which to reach a reasoned conclusion” … .

Recognizing that this custody proceeding largely turned upon the credibility of the mother and the father, each of whom alleged that the other was an unfit parent, Family Court deprived both parties of a full and fair opportunity to be heard by inexplicably cutting off the father’s direct testimony and failing to allow any cross-examination of him. Further, given that the court granted the father sole legal and primary physical custody of the child in the face of the mother’s allegations that the father had committed numerous acts of domestic violence, including in front of the child, the court’s failure to allow cross-examination of the father deprived it of sufficient information to perform a meaningful best interests analysis … . Accordingly, we reverse and remit for a new fact-finding hearing … . Matter of Casey Q. v Jeffrey O., 2025 NY Slip Op 01981, Third Dept 4-3-25

Practice Point: Here in this child custody dispute, the judge issued a ruling awarding custody to father before father had completed his direct testimony. The premature ruling deprived the parties of due process of law.

 

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THE NYS DEPARTMENT OF HEALTH’S CLARIFICATION OF BILLING PRACTICES FOR PHYSICIANS WHO DISPENSE PRESCRIPTION DRUGS UNDER THE MEDICAID PROGRAM IS VALID; THE CLARIFICATION IS NOT A “RULE” AND IS NOT VOID FOR VAGUENESS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined a clarification issued by the respondent NYS Department of Health, was valid, was not a rule, and was not void for vagueness. The clarification concerned the billing practices for physicians who dispense prescription drugs:

As it regularly does, respondent [NYS Department of Health] took steps to clarify appropriate billing practices. This included issuance of the July 2022 edition of its official newsletter of the New York State Medicaid Program — Medicaid Update. In a section entitled “Policy Clarification for Practitioner Dispensing” … , which purported to “supersede[ ] previous communications on this topic,” respondent stated that the state Medicaid program reimburses for drugs furnished by practitioners to their patients on the basis of the acquisition cost to the practitioner and that additional registration or ownership of a pharmacy is not required. The clarification went on to provide that practitioners billing for medications dispensed to its fee-for-service patients should use the medical claim format and that practitioners still participating in managed care should check with the patient’s health plan to determine the billing policy for prescription drugs dispensed directly to patients. Reportedly confused by the alleged change in billing practice, petitioner subsequently contacted respondent for further clarification. In response, respondent reiterated that a practitioner that dispenses drugs to their patients is not considered a pharmacy under either statutory or enrollment requirements and therefore should not be enrolled or billing as a pharmacy provider.

Petitioner then commenced this CPLR article 78 proceeding to annul the clarification as an unpromulgated rule, unconstitutionally vague, irrational and violative of section 504 the Rehabilitation Act of 1973 (see 29 USC § 794). Citing anticipated financial losses for expenses attendant to medication dispensing, that is, beyond the acquisition cost of the drugs, petitioner argued that respondent’s alleged new rule would force it to cease its physician-dispensing services altogether, thereby both irrationally depriving cancer patients from effective treatment and discriminating against them by effectively precluding them from meaningful access to the provider of their choice. Matter of North Shore Hematology-Oncology Assoc., P.C. v New York State Dept. of Health, 2025 NY Slip Op 01985, Third Dept 4-3-25

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FAMILY COURT LOST SUBJECT MATTER JURISDICTION AFTER THE NEGLECT PETITION WAS DISMISSED; THEREFORE THE COURT SHOULD NOT HAVE CONTINUED THE CHILD’S PLACEMENT IN FOSTER CARE (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Gesmer, determined Family Court lost subject matter jurisdiction after the neglect petition against mother was dismissed. Therefore the child’s placement in foster should not have been continued by the court. The First Department also noted that mother’s mental-health records from the period after the filing and after the dismissal of the neglect petition were improperly admitted:

We … find that Family Court lacked subject matter jurisdiction to continue R.C.’s foster care placement for the reasons articulated in Matter of Jamie J. (Michelle E.C.) (30 NY3d 275 [2017]), in which the Court of Appeals held that “Family Court’s jurisdiction terminates upon dismissal of the original neglect or abuse petition” … .

The “court’s lack of subject matter jurisdiction is not waivable, but may be raised at any stage of the action, and the court may . . . on its own motion . . . at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action” … .

Here, once the neglect petition against the mother was dismissed, Family Court lacked subject matter jurisdiction to continue the child’s temporary removal from the mother’s care and placement in foster care … . Accordingly, it should have immediately returned the child to the mother’s care and terminated the child’s foster care placement. It erred when it determined that it could hold permanency hearings based on the pending neglect petition against the putative father, since the child was not removed from his care, but from the mother’s. … Indeed, there is no evidence in the record that the child ever resided with the putative father and no indication that he ever sought custody of the child.

Furthermore, we find that the failure of Family Court to immediately return the child to the care of the mother after the dismissal of the neglect petition against her—as well as the subsequent protracted proceedings, including the dispositional hearing, which lasted nearly a year and a half—violated her due process rights … . Matter of R.C. (D.C.–R.R.), 2025 NY Slip Op 01859, First Dept 3-27-25

Practice Point: Here Family Court lost subject matter jurisdiction after the neglect petition against mother was dismissed and did not have the authority to continue the child’s placement in foster care.

Practice Point: The protracted proceedings after the dismissal of the neglect petition, during which the child remained in foster care, violated mother’s right to due process.

 

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MOTHER, WHO WAS REPRESENTING HERSELF IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING, WAS DENIED DUE PROCESS BY THE JUDGE’S (1) COMMENCING THE HEARING WITHOUT HER, (2) SUBSEQUENTLY EXCLUDING HER FROM THE COURTROOM, (3) DENYING HER REQUEST FOR DOCUMENTS WHICH WERE IN EVIDENCE, (4) AND DENYING HER REQUEST FOR AN ADJOURNMENT TO CONSULT WITH HER LEGAL ADVISOR (SECOND DEPT). ​

The Second Department, reversing Family Court, determined mother, who was representing herself, was deprived of her right to due process in this termination of parental rights proceeding by “a confluence of factors:”

“A parent has a due process right to be present during proceedings to terminate parental rights”. Nonetheless, “[a] parent’s right to be present for fact-finding and dispositional hearings in proceedings to terminate parental rights is not absolute” … . “The child whose guardianship and custody is at stake also has a fundamental right to a prompt and permanent adjudication” … . “Thus, when faced with the unavoidable absence of a parent, a court must balance the respective rights and interests of both the parent and the child in determining whether to proceed” … .

Here … the mother was deprived of her due process right to be present in the proceedings seeking to terminate her parental rights. First, the Family Court determined to commence the hearing in the mother’s absence, even though she was proceeding pro se and had made representations to the court through her legal advisor that she had been directed to quarantine by her medical provider and was requesting an adjournment … . Notably, the record does not indicate that the mother had a history of failing to appear, nor did the court apparently rely on that factor in deciding to commence the hearing in the mother’s absence … .

Furthermore, when the hearing continued one week later, the Family Court improvidently exercised its discretion in denying the mother’s requests, among other things, for a copy of her own court-ordered psychiatric evaluation, which, at that point, was in evidence, and for additional time to obtain a court transcript and to consult with her legal advisor. Perhaps most significantly, the court abused its discretion in excluding the mother from the courtroom for the remainder of the hearing, without the issuance of a warning and with knowledge of the mother’s diagnoses contained in the psychiatric evaluation … . Thus, on both dates of the hearing, the mother was left without an advocate … . Matter of Justina C. M. J. (Chantilly J.), 2025 NY Slip Op 01805, Second Dept 3-26-25

Practice Point: Here mother was denied the right to be present in the termination-of-parental-rights proceeding, was denied access to evidence and her request for an adjournment to consult with her legal advisor was denied. Cumulatively mother was denied her right to due process.

 

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NEW YORK CITY LOCAL LAW 11, WHICH ALLOWS NON-CITIZENS TO VOTE, VIOLATES THE NEW YORK STATE CONSTITUTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over an extensive dissenting opinion, determined New York City Local Law 11, which allowed non-citizens to vote, violates the New York Constitution:

Local Law 11 allows “municipal voters” to vote in New York City elections for the offices of Mayor, Public Advocate, Comptroller, Borough President and City Council Member (New York City Charter §§ 1057-aa, 1057-bb). The law defines a municipal voter as “a person who is not a United States citizen on the date of the election on which he or she is voting,” and who: (1) “is either a lawful permanent resident or authorized to work in the United States”; (2) “is a resident of New York city and will have been such a resident for 30 consecutive days or longer by the date of such election”; and (3) “meets all qualifications for registering or preregistering to vote under the election law, except for possessing United States citizenship, and who has registered or preregistered to vote with the board of elections in the city of New York under this chapter” … . * * *

Whatever the future may bring, the New York Constitution as it stands today draws a firm line restricting voting to citizens. Fossella v Adams, 2025 NY Slip Op 01668, CtApp 3-20-25

Practice Point: The NYS Constitution restricts the right to vote to citizens.

 

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