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THE SEARCH WAS NOT A VALID INVENTORY SEARCH; THE HANDGUN FOUND IN DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court’s denial of defendant’s suppression motion, determined the search of defendant’s vehicle was not a valid inventory search and the handgun should have been suppressed:

“To be constitutionally valid, an inventory search must be [reasonable and] conducted according to a familiar routine procedure” … . The established procedure should be designed to “meet the legitimate objectives of the search,” such as protecting the owner’s property and insuring police against claims of lost or stolen property, “while limiting the discretion of the officer in the field”. Here, the second deputy failed to adhere to the requirements set forth in the relevant inventory policy. Namely, he did not obtain the approval of his shift supervisor before beginning the alleged inventory procedure. Further, although not explicitly written in the policy, the second deputy also admitted that he deviated from normal procedure when he failed to complete the inventory report as he conducted the inventory.  People v Grandoit, 2025 NY Slip Op 05720, Third Dept 10-16-25

Practice Point: Consult this decision for insight into how the legitimacy of an inventory search is determined by a reviewing court.​

 

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DEFENSE COUNSEL’S MISUNDERSTANDING OF THE ELEMENTS OF A CHARGED OFFENSE RESULTED IN THE PRESENTATION OF EVIDENCE BY THE DEFENDANT WHICH PROVED THE COMMISSION OF THE OFFENSE; DEFENSE COUNSEL WAS INEFFECTIVE; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective for failing to understand the nature of one of the criminal charges and presenting evidence which proved defendant’s commission of the charged offense. “Penal Law § 120.05(7) provides that a person is guilty of assault in the second degree when “[h]aving been charged with or convicted of a crime and while confined in a correctional facility, . . . with intent to cause physical injury to another person, he causes such injury to such person or to a third person” … . Defendant presented evidence he intended to punch another inmate but struck a corrections officer, thereby proving all the elements of the offense:

… [T]he record reveals that defense counsel’s trial strategy rested on the erroneous theory that defendant could not be found guilty of the charged offense if it could be proved that the correction officer was not the intended target of the assault. At trial, defense counsel called his client to testify. Defendant testified that while incarcerated, he became involved in an altercation with another inmate. He explained that during the encounter, he threw a “sucker punch” at that inmate, but in so doing, struck the correction officer instead. Defendant averred that the correction officer was not his intended target.

During summation, defense counsel compounded this error by incorrectly stating the required elements of Penal Law § 120.05(7) and declaring that in order to find defendant guilty of the charge, it must be proved that defendant intended to hit the correction officer. However, proving that the intended target of the assault was the correction officer is not a material element of the crime charged. Thus, counsel’s defense strategy constituted an admission to the jury of the elements necessary to prove the assault in the second-degree count (see Penal Law § 120.05[7]). Moreover, defense counsel’s argument to the court that he did not believe that the prosecution could amend its theory based on defendant’s testimony demonstrated yet another critical misunderstanding, of settled New York law that pertained to the entire defense strategy … . People v Calderon, 2025 NY Slip Op 05755, First Dept 10-16-25

Practice Point: Here, defense counsel’s failure to understand the elements of a charged offense constituted ineffective assistance, resulting in reversal and a new trial.​

 

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THE ELEVEN YEAR ELECTION LAW (EYEL), WHICH MANDATES EVEN-YEAR COUNTY ELECTIONS, DOES NOT VIOLATE THE MUNICIPAL HOME RULE PROVISIONS OF THE NEW YORK STATE CONSTITUTION; THE CHALLENGE BY COUNTIES WITH CHARTER PROVISIONS MANDATING ODD-YEAR ELECTIONS WAS REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the state had the authority to pass the Even Year Election Law (EYEL) which mandates even-year local elections. Several counties with charters setting odd-year elections challenged the EYEL as violating the home rule provisions of article IX of the State Constitution:

The Municipal Home Rule Law was enacted contingent on the passage of the current form of article IX to “provide for carrying into effect provisions of article nine of the constitution . . . and to enable local governments to adopt and amend local laws for the purpose of fully and completely exercising the powers granted to them under the terms and spirit of such article” (see Municipal Home Rule Law §§ 50, 59). As relevant here, Municipal Home Rule Law § 33 (3) (b) requires that county charters must “provide for . . . the manner of election or appointment” and “terms of office” for “agencies or officers responsible for the performance of the functions, powers and duties of the county,” while Municipal Home Rule Law § 34 (3) contains a list of topics that a county charter cannot address in a manner inconsistent with enacted state legislation. * * *

Nothing in article IX limits, expressly or by implication, the otherwise plenary authority of the legislature to mandate the timing of certain elections, as the EYEL does … . Consequently, without any such constitutional limitation, the EYEL is a proper exercise of that authority. County of Onondaga v State of New York, 2025 NY Slip Op 05737, CtApp 10-16-25

 

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THE DEFENDANT SAID “HE DIDN’T WANT TO TALK ABOUT THAT …” AND THE POLICE STOPPED QUESTIONING HIM; AN HOUR AN A HALF LATER THE POLICE RESUMED QUESTIONING WITHOUT RE-READING THE MIRANDA RIGHTS; THOSE STATEMENTS SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the statements made by defendant after he invoked his right to remain silent should have suppressed. The questioning stopped after defendant said “he didn’t want to talk about that …”. The questioning resumed an hour and a half later without a re-reading of defendant’s Miranda rights:

… [A]fter the police told defendant that they considered him a suspect in the underlying shooting and asked him “for his side of the story,” defendant continually stated that “he didn’t want to talk about that and [that] he’d rather take his chances.” We conclude that defendant thereby unequivocally invoked his right to remain silent … inasmuch as “[n]o reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police” … . Indeed, the actions of the police in response to defendant’s statement demonstrated that they understood his statement to be an unequivocal invocation of his right to remain silent—i.e., they promptly ceased their questioning of defendant and left the interrogation room for a prolonged period of time … . Defendant’s responses to a police officer when the officer resumed the interrogation—which occurred about an hour and a half after the prior questioning ceased—did not negate defendant’s prior unequivocal invocation of his right to remain silent because the police officer failed to reread the Miranda warnings to defendant before resuming the interrogation and therefore failed to scrupulously honor his right to remain silent … . People v Surles, 2025 NY Slip Op 05603, Fourth Dept 10-10-25

Practice Point: Here the police stopped questioning defendant when he said “he didn’t want to talk about that …”. An hour and half later the police resumed questioning without re-reading the Miranda rights. Those statement should have been suppressed.

 

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THE JUDGE’S ASSESSING SORA RISK-LEVEL POINTS NOT REQUESTED BY THE PEOPLE VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW; THE JUDGE FAILED TO MAKE THE FINDINGS REQUIRED BY THE CORRECTION LAW FOR AN UPWARD DEPARTURE; DETERMINATION VACATED (FOURTH DEPT).

The Fourth Department, reversing the SORA risk level determination, held that the judge violated defendant’s right to due process of law by assessing points that were not requested by the People, and violated the Correction Law requirements for imposing an upward departure:

Although defendant failed to object to the assessment of points … when the court rendered its oral decision, we “review defendant’s contention in the interest of justice in light of the substantial infringement upon [her] due process and statutory rights” … .

… [T]he court failed to comply with the requirement of Correction Law § 168-n (3) that it set forth the findings of fact and conclusions of law upon which it based its decision to grant the People’s request for an upward departure … . In its decision, the court merely concluded, under the first part of the relevant three-part analysis, that the People had identified “aggravating . . . circumstances . . . of a kind or to a degree not adequately taken into account by the guidelines” … . At no time in its decision did the court render a determination on the other two parts of the relevant analysis. Rather, after identifying the aggravating circumstances, the court conclusorily granted the People’s application for an upward departure, without ever “weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant’s dangerousness and risk of sexual recidivism” … . People v Ridley, 2025 NY Slip Op 05599, Fourth Dept 10-10-25

Practice Point: If a judge assesses SORA risk-level points not requested by the People, the defendant’s due process rights are violated.

Practice Point: In granting an upward departure in a SORA risk-level-assessment proceeding, the judge must make the findings required by the Correction Law.

 

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THE PROVISION OF THE CORRECTION LAW WHICH REQUIRES AN OUT-OF-STATE SEX OFFENDER TO BE CLASSIFIED AS A “SEXUALLY VIOLENT OFFENDER” UPON RESIDING IN NEW YORK, REGARDLESS OF WHETHER THE OUT-OF-STATE OFFENSE WAS VIOLENT, IS UNCONSTITUTIONAL AS APPLIED TO THIS DEFENDANT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Taylor, determined the Correction Law provision requiring that an out-of-state sex-offender be automatically classified as a “sexually violent offender” upon residing in New York was unconstitutional as applied to the defendant:

Pursuant to Correction Law § 168-a(3)(b), the People … provided notice of their intent to seek a “sexually violent offender” designation for the defendant based on the out-of-state conviction because the defendant was required to register as a sex offender in Florida. * * *

We hold that the foreign registration clause, insofar as applied to the defendant, is not rationally related to a legitimate government interest, and therefore violates his substantive due process rights (see People v Brown, 41 NY3d at 284).

In particular, we agree with the Appellate Division, Fourth Department’s conclusion that, “[D]esignating [a] defendant as sexually violent merely because he [or she] had an out-of-state sex conviction requiring out-of-state registration, regardless of whether that underlying offense is violent—as is currently required by the text of Correction Law § 168-a(3)(b)—bears no rational relationship to the legitimate governmental interest of informing the public of threats posed by sex offenders” (People v Malloy, 228 AD3d at 1289).” People v Edwards, 2025 NY Slip Op 04922, Second Dept 9-10-25

Practice Point: Here the Correction Law provision requiring that out-of-state sex offenders be classified as “sexually violent offenders” upon residing in New York was deemed unconstitutional as applied to the defendant, whose out-of-state offense was nonviolent.​

 

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ALTHOUGH PLAINTIFF IN THIS DEFAMATION ACTION WAS ALLOWED TO SUE UNDER A PSEUDONYM, THE TEMPORARY RESTRAINING ORDER PROHIBITING DEFENDANTS FROM REVEALING PLAINTIFF’S IDENTITY TO THIRD PARTIES, INCLUDING WITNESSES AND INVESTIGATORS, WAS AN UNCONSTITUTIONAL PRIOR RESTRAINT OF SPEECH (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the temporary restraining order prohibiting defendants from revealing plaintiff’s identity to third parties in this defamation action was an unconstitutional prior restraint on speech. Plaintiff had been allowed to sue under a pseudonym:

… Supreme Court erred in granting that branch of the plaintiffs’ motion which was for a temporary restraining order prohibiting the defendants from disclosing the plaintiffs’ identities to third parties, sharing any statements or documents regarding the instant action, or discussing the instant action. “A prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression” … . “Any imposition of prior restraint, whatever the form, bears a ‘heavy presumption against its constitutional validity, and a party seeking to obtain such a restraint bears a correspondingly heavy burden of demonstrating justification for its imposition'” … . An injunction issued in the area of First Amendment rights under the United States Constitution “must be tailored as precisely as possible to the exact needs of the case” … . Here, the Supreme Court’s temporary restraining order was overbroad, such that it prevented the defendants from discussing the instant action with third-party witnesses or disclosing the plaintiffs’ names for investigative purposes … . Doe v Eliyas, 2025 NY Slip Op 04876, Second Dept 9-10-25

Practice Point: Consult this decision for insight into when a restraining order prohibiting revealing the identity of a plaintiff suing under a pseudonym is an unconstitutional prior restraint of speech.

 

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THERE ARE QUESTIONS OF FACT WHETHER THE FORFEITURE OF THE VEHICLE USED FOR FOOD VENDING WITHOUT A LICENSE IS “PUNITIVE” IN NATURE AND VIOLATES THE “EXCESSIVE FINES” CLAUSES OF THE NEW YORK STATE AND UNITED STATES CONSTITUTIONS; THE FINES IMPOSED FOR THE FOOD VENDING VIOLATION WERE $2600 AND THE VALUE OF THE VEHICLE IS $40,000 (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined the forfeiture of Thomas Jones’ vehicle for food vending without a license violated the Excessive Fines clauses of both the State and Federal Constitutions. The vehicle was worth $40,000, and the fine imposed for vending without a license was $2600:

The City … commenced this proceeding in Supreme Court pursuant to Administrative Code of City of NY §§ 17-321(c) and 17-322 to seize and order forfeiture of Jones’ truck. Administrative Code § 17—321(a) permits both public health officials and the police to enforce food vending codes. Section 17-321(c)(iii) permits police or public health officials to seize a food vending vehicle being used by an unlicensed vendor and any food being offered for sale. If forfeiture proceedings are not commenced, the vendor may be charged with the “reasonable costs for removal and storage payable prior to the release of such food, vehicle or pushcart.” Section 17—322(a) provides for forfeiture of “all property seized” from unlicensed food vendors “[i]n addition to any penalties imposed” pursuant to Section 17-325. Section 17-325(a) provides that vending food without a license is a misdemeanor punishable by a fine of up to $1,000, imprisonment for up to three months, or both. Section 17-325(c) provides for additional fines for unlicensed food vendors.

The motion court denied the City’s motion for summary judgment on the grounds that there are questions of fact as to: (1) whether the forfeiture provision at issue is punitive in nature; and (2) whether the value of the property seized is so disproportional to the fines imposed and any harm to society that it violates the excessive fines clauses of the New York and United States Constitutions. We now affirm. City of New York v Jones, 2025 NY Slip Op 04842, First Dept 9-4-25

Practice Point: Consult this opinion for an in-depth discussion of when forfeiture is deemed “punitive” in nature such that forfeiture violates the Excessive Fines clauses of the State and Federal Constitutions.

 

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THE VIOLATIONS OF EXECUTIVE LAW 63 (12) BASED ON FALSE “STATEMENTS OF FINANCIAL CONDITION” (SFC’S) SUBMITTED TO OBTAIN LOANS FOR TRUMP ENTITIES WERE AFFIRMED ON APPEAL; HOWEVER THE RELATED “DISGORGEMENT” OF NEARLY HALF-A-BILLION DOLLARS WAS DEEMED AN EXCESSIVE FINE AND WAS VACATED (FIRST DEPT).

The First Department, in three decisions issued by a divided court with no majority, determined the defendants violated Executive Law section 63 (12) by submitting deceptive business records to banks, insurance companies, and the NYC Parks Department. The suit alleged, for example, President Donald Trump submitted false “statements of financial condition” (SFC”s) to banks to obtain better loans for Trump entities. Supreme Court had ordered “disgorgement” of nearly half-a-billion dollars. The First Department held the “disgorgement” was an improper, excessive “fine” and vacated it. The fraud-based violations of the Executive Law remain standing, however. All expect the case to go to the Court of Appeals:

Defendants appeal from two decisions (and the resulting judgment) holding that defendants violated Executive Law § 63(12) by repeatedly submitting deceptive business records to banks, insurance companies, and the New York City Parks Department.

Presiding Justice Renwick and I [Justice Moulton] find that Supreme Court correctly found defendants liable. We agree with Supreme Court that the Attorney General acted well within her lawful power in bringing this action, and that she vindicated a public interest in doing so. We also find that Supreme Court properly ruled only on claims that are timely under the applicable statute of limitations. However, we would modify the remedy ordered by Supreme Court. While the injunctive relief ordered by the court is well crafted to curb defendants’ business culture, the court’s disgorgement order, which directs that defendants pay nearly half a billion dollars to the State of New York, is an excessive fine that violates the Eighth Amendment of the United States Constitution.

This decision is one of three issued by this Court today. Presiding Justice Renwick and I agree with our colleagues on certain points. Most importantly, we agree with Justice Higgitt, who is joined by Justice Rosado, that the Attorney General is empowered by Executive Law § 63(12) to bring this action. However, our remaining disagreements with our colleagues’ decisions are profound. In sum, Justice Friedman finds that Supreme Court’s rulings are infirm in almost every respect and would hold that the Attorney General had no power to bring this case under Executive Law § 63(12). He would dismiss the complaint outright. Justice Higgitt, while agreeing that the Attorney General had the power to bring this lawsuit, finds that errors made by Supreme Court require a new trial limited to only some of the transactions in question. * * *

Because none of the three decisions garners a majority, Justices Higgitt and Rosado join the decretal of this decision for the sole purpose of ensuring finality, thereby affording the parties a path for appeal to the Court of Appeals. People v Trump, 2025 NY Slip Op 04756, First Dept 8-21-25

Practice Point: Here “disgorgement” of nearly a half billion dollars for fraud-related violations of the Executive Law (stemming from submission of false “statements of financial condition” to obtain loans for Trump entities) was deemed an excessive fine and was vacated by the First Department.

 

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THERE WAS NO EVIDENCE MOTHER WAS SERVED WITH THE ORDER OF PROTECTION PROHIBITING THE FATHER’S CONTACT WITH HER AND THE CHILDREN; THE PROOF IN THIS CHILD NEGLECT PROCEEDING AGAINST MOTHER DID NOT MATCH THE ALLEGATIONS IN THE PETITION; THE JUDGE EFFECTIVELY AMENDED THE PETITION BY IMPROPERLY CONFORMING THE PETITION TO SERIOUSLY CONFLICTING AND CONTRADICTORY PROOF; MOTHER WAS NEVER GIVEN THE OPPORTUNITY ADDRESS THE “AMENDED” PETITION; NEGLECT FINDING VACATED (FIRST DEPT).

The First Department, vacating the neglect finding against mother, in a full-fledged opinion by Justice Rosada, determined there was insufficient support in the record for the judge’s resolution of conflicting evidence, which amounted to an amendment of the petition to conform to the proof. Mother was never given the opportunity to address the judge’s sua sponte amendment of the petition, a violation of due process. In addition, there was no proof mother was served with an order of protection prohibiting father’s contact with the children (it was alleged mother left the children in father’s care when she was hospitalized). The facts of the case are too complex to fairly summarize here:

… ACS [Administration for Children’s Services] failed to adduce any proof of actual or imminent danger of physical, emotional, or mental impairment to the children in remaining in a home with the father and M.H. [paternal grandmother] during the mother’s brief hospitalization … . * * *

… Family Court unduly relied upon the contradictory testimony of Trazile [CPS worker] and M.H. in rendering its determination that respondent neglected the children. While credibility determinations of Family Court are normally accorded due deference … , the determination here “lacks a sound and substantial evidentiary basis,” and the court should have dismissed the petition (… see also Family Ct Act § 1051[c]). The court credited the testimonies of both Trazile and M.H., which together presented three markedly different and contradictory accounts of how the children came to be in M.H.’s care. Significantly, all three accounts are departures from the allegations set forth in the amended petition.

While the court is empowered sua sponte to conform the pleadings to the proof, as it arguably did here via its restatement of the allegations in its written decision, Family Ct Act § 1051(b) requires that in such cases, the respondent be given reasonable time to prepare to answer the amended allegations, which was not done here … . “Absent additional allegations set forth in an amended petition that conforms to the proof with notice to the respondent, the court must not base a finding of neglect on allegations not set forth in the petition” … . Matter of Kaius A. v Abigail H., 2025 NY Slip Op 04692, First Dept 8-14-25

Practice Point: If Family Court is confronted with internally inconsistent and contradictory proof which does not match the allegations in the neglect petition, the petition should be dismissed.

Practice Point: If mother is accused of violating an order of protection, there must be proof she was served with the order.

Practice Point: Although Family Court has the power to sua sponte conform a neglect petition to the proof by issuing findings of fact, due process requites that mother be given the opportunity to address the “new” allegations in the “amended” petition.

 

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