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NEW YORK STATE OFFICE OF MENTAL HEALTH (OMH) WAS PROPERLY HELD IN CONTEMPT AND FINED $100-A-DAY FOR THE DELAY IN TRANSFERRING THE MENTALLY ILL DEFENDANT FROM RIKERS ISLAND TO A SECURE PSYCHIATRIC FACILITY (FIRST DEPT).

The First Department determined the New York State Office of Mental Health (OMH) was properly held in contempt based on a delay in transferring the mentally ill defendant from Rikers Island to a secure psychiatric facility. $100-a-day damages were assessed:

Defendant was charged with assault in the second degree based on the complaint that he pushed his mother to the ground causing her to twist and injure her toe. He was remanded to the custody of the Department of Corrections and held at Rikers Island. The charge was later elevated from a misdemeanor to a felony based on his mother’s age. After defendant was evaluated for competency a second time in January 2025, both evaluators concluded that defendant was unfit to proceed. Supreme Court agreed, and on February 24, 2025, it ordered defendant remanded to the custody of OMH for restorative treatment. The order of commitment required that the defendant “be transferred into the custody of the Office of Mental Health no later than March 24, 2025” and warned that a failure to do so would result in a finding of contempt. It is uncontested that the transfer was delayed until July 25, 2025. * * *

OMH argues that defendant failed to prove that OMH’s delay caused his mental health to deteriorate. However, the relevant issue is not whether defendant deteriorated while he was in custody but whether OMH provided the requisite restorative care. In any event, Supreme Court was entitled to credit Dr. Goldsmith’s testimony that defendant’s condition did deteriorate at Rikers. OMH’s attempt to blame defendant for his loss because he is mentally ill and refuses treatment is risible. The purpose of a transfer to a secure psychiatric facility is so that a mentally ill defendant can receive statutorily mandated restorative care and treatment. To attribute defendant’s loss or injury to defendant’s preexisting mental illness, which causes defendant to refuse treatment, turns Criminal Procedure Law article 730 on its head. People v G.O., 2026 NY Slip Op 05242, First Dept 9-10-26

 

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THE DENIAL WITHOUT PREJUDICE OF A REQUEST TO APPLY FOR RESENTENCING PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) DOES NOT IMPLICATE THE MERITS OF RESENTENCING AND IS NOT APPEALABLE (THIRD DEPT).

The Third Department, over a detailed dissent, determined the dismissal-without-prejudice of the pro se defendant’s request for permission to apply for resentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) (CPL 440.47) was not appealable:

CPL 440.47 is a procedural vehicle that allows “presently incarcerated persons serving sentences of at least eight years . . . to apply for resentencing pursuant to the framework established in Penal Law § 60.12 (1)” … . CPL 440.47 (1) details the pre-application phase, which is step one of the resentencing process. At step one, the defendant must request permission to apply for resentencing in accordance with Penal Law § 60.12 and demonstrate his or her eligibility for same. To do so, there are two simple criteria: such person “[(1)] must include in his or her request documentation proving that she or he is confined in an institution operated by the [D]epartment of [C]orrections and [C]ommunity [S]upervision serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to [August 12, 2019] and [(2)] that she or he is serving such sentence for any offense eligible for an alternative sentence under section 60.12 of the [P]enal [L]aw” ,,, . If the court finds that the defendant satisfies these criteria, it must notify the defendant that he or she may submit an application for resentencing (see CPL 440.47 [1] [c]). After the court notifies the defendant, he or she can request the appointment of an attorney to assist with the next steps … . However, if the court finds that the defendant has not met the requirements to apply for resentencing, it must notify the defendant of same and dismiss the request without prejudice … . It is evident from the plain language contained herein that such dismissal cannot constitute “an order denying resentencing” (CPL 440.47 [3] [a]). Of note, step one, as far as we can tell, is completely unique to the DVSJA as it asks that a defendant request permission to make the CPL 440.47 … . To that end, at step one, the defendant is merely considered a “person” rather than an “applicant” and, as such, has not actually asked the court to grant resentencing … . By virtue of this simple distinction, it is apparent that the pre-application procedure does not implicate the merits of resentencing … .. People v Shawn A., 2026 NY Slip Op 05216, Third Dept 9-3-26

 

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ALTHOUGH SUPREME COURT DID NOT ABUSE ITS DISCRETION WHEN IT GRANTED THE PEOPLE’S MOTION TO PREVENT THE TRANSFER OF THE ADOLESCENT OFFENDER’S CASE TO FAMILY COURT, MITIGATING FACTS AND THE LEGISLATIVE PURPOSE UNDERLYING THE “RAISE THE AGE” LEGISLATION WARRANTED INVOCATION OF THE COURT’S “INTEREST OF JUSTICE” JURISDICTION AND DENIAL OF THE PEOPLE’S MOTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Chan, reversing Supreme Court, over a two-justice dissent, held that Supreme Court did not abuse its discretion when it granted the People’s motion to prevent the transfer of the adolescent offender’s case to Family Court. On the “no abuse of discretion” question, the majority and the dissenters agreed. The majority, however, went on to invoke its “interest of justice” jurisdiction, based on mitigating facts and the underlying purpose of the “Raise the Age (RTA)” legislation, to deny the People’s motion and allow the transfer to Family Court:

… [D]efendant, then 17 years old, chased a young woman across a basketball court, grabbed her from the back while placing his arm around her neck, and eventually brought her to the ground….  As a result, the young woman suffered minor injuries. At no point, including at the time of his arrest, did defendant take out, display, use, or fire [the] gun [found in his fanny pack]. Nor did he otherwise threaten to do so. * * *

Under the RTA, prosecutions of adolescent offenders — defined as 16 or 17 year olds charged with a felony — are presumptively removable from the Youth Part of Supreme Court to Family Court (see CPL 722.10[1]; CPL 722.23[1], [2] …). The People can rebut that presumption if a defendant is charged with a class A nondrug felony or a violent felony, and the People prove, “by a preponderance of the evidence,” that defendant (1) “caused significant physical injury” during the commission of the offense, (2) “displayed a firearm, shotgun, rifle or deadly weapon” in “furtherance of” the offense, or (3) committed a sex offense (see CPL 722.23[2][c] …). “Otherwise, the case is removed to Family Court unless, upon a motion by the People, the [Y]outh [P]art determines that ‘extraordinary circumstances exist that should prevent the transfer of the action to’ Family Court” … . * * *

… [D]efendant shouldered caretaker responsibilities for his family, including assisting his mother during a difficult pregnancy and being a source of mentorship and support for his younger siblings. He participated avidly in sports teams and lessons. His maturity was importantly manifested by his demonstrated amenability to Family Court’s services. For example, defendant highlighted his improved school performance during the COVID-19 pandemic, his interest in pursuing vocational studies, and his successful graduation from the Exalt Youth program with perfect attendance and outstanding participation. …

In our view, these are precisely the types of facts that the legislators contemplated would support removal to Family Court … . People v Key, 2026 NY Slip Op 05234, First Dept 9-3-26

Practice Point: Consult this opinion for an in depth discussion of the purpose and implementation of the “Raise the Age” legislation which allows the transfer of adolescent offenders’ felony prosecutions to Family Court.

Practice Point: Here the majority and the dissenters agreed Supreme Court did not abuse its discretion when it granted the People’s motion to deny the transfer of the adolescent’s case to Family Court, but the majority went on to invoke its “interest of justice” jurisdiction to reverse, something the Court of Appeals would not have the power to do.

 

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THE SUFFOLK COUNTY CODE PROVISIONS WHICH ALLOW THE SEIZURE AND FORFEITURE OF VEHICLES USED BY DRUNK DRIVERS IS CONSTITUTIONAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice McCormack, determined the provisions of the Suffolk County Code which provide for the seizure and forfeiture of vehicles used by drunk drivers is constitutional:

On this appeal, we are called upon to consider the validity of Suffolk County’s civil forfeiture statute, codified in chapter 420, article II (hereinafter chapter 420) of the Code of Suffolk County (hereinafter the Code), pursuant to which a vehicle being operated by the defendant Hassan Qamar (hereinafter the defendant) was seized at the time of his arrest for driving while intoxicated. The defendant challenges the validity of chapter 420 of the Code on three bases: (1) that the procedures relating to the post-seizure hearings conducted pursuant thereto violate article VI of the New York State Constitution, and deprived him of due process of law, (2) that the provisions of chapter 420 of the Code are preempted by State law, and (3) that the forfeiture of his vehicle constitutes an excessive fine prohibited by the State and Federal Constitutions. For the reasons that follow, we hold that the defendant’s challenges to the procedures involving the post-seizure hearing have been rendered academic, and that there is no merit to his remaining challenges. Accordingly, we affirm the judgment. * * *

… [A] Suffolk County Police Department (hereinafter the SCPD) police officer observed the defendant operating a Nissan Altima (hereinafter the vehicle) on Pulaski Road in Huntington at a speed of 100 miles per hour in a 35-mile-per-hour zone and passing a steady red traffic control light. According to the felony complaint, the defendant, inter alia, had a strong odor of alcohol on his breath and admitted having “a few beers and a few shots of J[a]m[e]son[ ] W[h]iskey.” The defendant purportedly displayed “clues indicative of intoxication upon submitting to standardized field sobriety test” and submitted to a chemical breath test that resulted in a .20% blood alcohol content. The defendant was arrested and charged with aggravated driving while intoxicated per se pursuant to VTL § 1192(2-a)(a) and driving while intoxicated pursuant to VTL § 1192(3). The defendant had previously been convicted of driving while intoxicated pursuant to VTL § 1192(3) on April 1, 2015. The vehicle was seized and impounded by the SCPD pursuant to chapter 420 of the Code. * * *

… [T]he defendant pleaded guilty to aggravated driving while intoxicated per se pursuant to VTL § 1192(2-a)(a), with one prior conviction. …

 … [T]he plaintiff commenced this civil forfeiture action pursuant to chapter 420 of the Code, seeking forfeiture of the defendant’s vehicle.   Cohen v A 2019 Nissan, 2026 NY Slip Op 05158, Second Dept 9-2-26

 

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PURUSANT TO CPL 420.25, SUPREME COURT PROPERLY DECLARED A DEED WHICH WAS THE SUBJECT OF AN OFFERING-A-FALSE-INSTRUMENT-FOR-FILING CONVICTION VOID AB INITIO; THE ARGUMENT THE PEOPLE MUST PROVE THE SIGNATURES ON THE DEED ARE FORGED WAS REJECTED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Quirk, determined the Criminal Procedure Law allows the court to declare a deed void ab initio where a deed is the subject of a offering-a-false-instrument-for-filing conviction. The argument the People were required to prove the signatures on the deed were forged was rejected:

This appeal presents issues with respect to CPL 420.45, a statute enacted in 2019 that permits a court, upon motion and after a hearing, to order that an instrument affecting real property be declared void ab initio when, as relevant here, a defendant has been convicted of offering a false instrument for filing in the first degree and the instrument is material to the encumbrance, transfer, or purchase of real property. Nonparty Bil-Man Asset Management, LLC (hereinafter the appellant), contends that CPL 420.45 applies only to deeds containing forged signatures and that the People failed to establish that the deed at issue here was forged. The appellant further contends that it rebutted the presumption under CPL 420.45 that the deed at issue was void ab initio. … Supreme Court properly granted the People’s motion, in effect, pursuant to CPL 420.45 to declare the deed void ab initio. * * *

Each guilty plea arose out of a scheme by the defendant and the codefendant to defraud the defendant’s mother, Marta Merino, out of certain real property that she owned in Brooklyn (hereinafter the property). Specifically, the defendant admitted … she recorded a deed (hereinafter the fraudulent deed) with the Office of the City Register of New York that purported to transfer title to the property from her mother to herself. She also admitted … she recorded a second deed, transferring title to the property from herself to 523 73rd Street, LLC, of which she was a member, and that there was never any agreement between the defendant and her mother that the defendant would hold title to the property. The defendant and the codefendant admitted that they stole loan proceeds from the appellant by means of a fraudulent mortgage on the property. * * *

… [T]he plain language of CPL 420.45 does not limit its application to deeds containing forged signatures. People v Merino, 2026 NY Slip Op 05196, Second Dept 9-2-26

Practice Point: Consult this opinion for an in-depth discussion of when a real-property-related instrument which is the subject of an offering-a-false-instrument-for-filing conviction can be declared void ab initio by the court. The People need not prove the signatures on the instrument are forged.

 

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PURSUANT TO CPL 30.30(2)(A), THE 90-DAY SPEEDY TRIAL CLOCK DOES NOT COUNT DAYS WHEN DEFENDANT IS NOT IN CUSTODY; HERE DEFENDANT WAS INITIALLY INCARCERATED, RELASED ON BAIL, AND THEN INCARCERATED AGAIN; THE DAYS DURING WHICH DEFENDANT WAS OUT ON BAIL ARE NOT PART OF THE 90-DAY CALCULATION (SECOND DEPT)

The Second Department, in a full-fledged opinion by Justice Duffy, in a matter of first impression, determined the 90-day clock for a speedy trial violation pursuant to CPL 30.30(2)(a) includes only the days during which defendant was incarcerated. Here defendant was initially incarcerated, then released on bail when his girlfriend posted bail, and then incarcerated again when his girlfriend withdrew as the surety. Defendant’s total number of incarcerated days before the People were ready for trial was 80 days:

Counsel for the defendant contended, among other things, that the 31 days between September 9, 2024, and October 11, 2024, when the defendant was no longer in custody as he had posted bail did not qualify under CPL 30.30(3) or (4) as an exception to the 90-day readiness requirement and that, therefore, 117 days were chargeable to the People for the purposes of CPL 30.30(2)(a). According to counsel, since the People were not ready for trial within 90 days after the defendant was first in custody, the defendant was entitled to be released under CPL 30.30(2)(a). Counsel argued that there was no statutory basis for two different CPL 30.30 clocks or for resetting the clock to exclude the 31 days when he was out on bail.

In opposition, the People contended that the 31 days when the defendant was out on bail should be excluded from the calculation of time under CPL 30.30(2)(a). They contended, in sum and substance, that, upon the defendant’s return to custody in this case, the 90-day time clock under CPL 30.30(2)(a) for the People to be ready for trial reset and began again. The People argued, in the alternative, that the 31 days that the defendant was out on bail should be excluded from the 90-day calculation of readiness under CPL 30.30(2)(a). Thus, they contended that the time chargeable to the People was 80 days, plus 4 days that the Supreme Court charged to the People with respect to a challenge the defendant had made to the validity of the People’s COC, but that, since only 84 days were chargeable under CPL 30.30(2)(a), the People had declared their readiness for trial within the statute’s permissible time frame. * * *

Supreme Court correctly determined that the defendant was not unlawfully detained in violation of CPL 30.30(2)(a). Under the appropriate calculation, here, 20 days was chargeable to the People before the defendant was released on bail from his original custody. Thereafter, an additional 60 days were chargeable to the People for the time period preceding the People’s filing of the COC and the SOR, during which the defendant was again incarcerated. Thus, for the purposes of CPL 30.30(2)(a), 80 days were chargeable to the People under CPL 30.30(2). People ex rel. Liles v Richards, 2026 NY Slip Op 05191, Second Dept 9-2-26

Practice Point: Pursuant to CPL 30.30(a)(2), the 90-day speedy trial clock does not include days when defendant is not in custody. Here defendant was initially incarcerated, released on bail, then incarcerated again. Because the days when defendant was out on bail are not part of the calculation, the speedy trial statute was not violated.

 

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DEFENDANT WAS DRIVING AT MORE THAN TWICE THE POSTED SPEED LIMIT IN A RESIDENTIAL NEIGHBORHOOD WHEN HE COLLIDED WITH ANOTHER CAR, KILLING THE DRIVER; USUALLY EXCESSIVE SPEED ALONE WILL NOT SUPPORT A CRIMINALLY NEGLIGENT HOMICIDE CHARGE; HERE, HOWEVER, THE EXCESSIVE SPEED IN COMBINATION WITH OTHER FACTORS, INCLUDING THE CHARACTER OF THE NEIGHBORHOOD, WAS SUFFICIENT TO SUPPORT THE CHARGE (SECOND DEPT).

The Second Department, reversing Supreme Court’s dismissal of the indictment, over a dissent, determined the evidence presented to the grand jury was legally sufficient for criminally negligent homicide. The defendant was driving at twice the speed limit in a residential neighborhood when he collided with another vehicle at an intersection, killing the driver. Generally driving in excess of the speed limit, alone, will not support a criminally negligent homicide charge. However, here, the excessive speed, in combination with other factors, was deemed sufficient:

[T]he culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires ‘some additional affirmative act’ aside from ‘driving faster than the posted speed limit'” … , which transforms speeding into dangerous speeding, by engaging in some other “risk-creating” behavior such as disregarding traffic signals … . However, there is no per se rule that speeding alone is insufficient … . There are circumstances where excessive speed “absent proof of any other contributing factors” is sufficient … . The extent of the violation of the posted speed limit and the surrounding circumstances must be considered … .

“[I]n order to sustain a conviction for criminally negligent homicide in a case in which the principal item of evidence consists of proof of the defendant’s use of excessive speed, [the law does not require that] the prosecution must always prove some other traffic law violation unrelated to the defendant’s rate of speed. While it may be accurate to say that an infraction of the posted speed limit does not ipso facto establish criminal negligence, it would not be accurate to say that a trier of fact may never conclude that in light of the time, the place, the weather conditions, and in light of any number of other factors which might be established at the trial, the defendant’s use of excessive speed was criminally negligent” … .

Here, … [t]he evidence, if accepted as true, demonstrated that the defendant disregarded road conditions, i.e., the fact that he was traveling in a residential neighborhood with a playground on the corner of the intersection, when he decided to drive his vehicle through the intersection at well above twice the posted speed limit … . The evidence further indicated that he was showing off to his friend how the vehicle “drives,” which, considering the fact that he accelerated the vehicle’s speed while allegedly doing so, indicated that he was showing off how the vehicle operated at a high speed. The evidence further indicated that he ignored a traffic control sign directing motorists to exercise additional caution … . People v Lee, 2026 NY Slip Op 05038, Second Dept 8-19-26

Practice Point: Here in the fatal-vehicle-accident case, defendant’s excessive speed, in combination with the nature of the neighborhood and other factors, supported the criminally negligent homicide charge.

 

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THE FAMILY COURT ACT ALLOWS COMMITMENT TO JAIL FOR SIX MONTHS FOR EACH VIOLATION OF AN ORDER OF PROTECTION; HERE THE 42-MONTH COMMITMENT WAS AFFIRMED (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Ventura, determined father was properly committed to jail for 42 months for 10 violations of orders of protection: Father argued the commitment could not be more than 30 days per violation:

After a hearing on both violation petitions … the Family Court found that the father willfully violated the temporary orders of protection … on 10 separate occasions. In an order of commitment … , the court, inter alia, committed the father to the custody of the New York City Department of Correction for a period of 42 months. The court rejected the father’s argument that, pursuant to Judiciary Law § 751, the court only had the authority to sentence him to 30 days in jail for each willful violation. The court determined that it had the authority to impose 10 consecutive six-month terms of incarceration based on its finding that the father committed 10 separate willful violations, which would amount to a maximum permissible sentence of 60 months in jail, and imposed the 42-month term of incarceration. The father appeals, asserting that the maximum permissible sentence was a total of 300 days in jail. * * *

Sections 846-a and 1072 of the Family Court Act provide a “specific punishment or other remedy” for a willful violation of an order of protection issued under article 10 of the Family Court Act (Family Ct Act § 156). Accordingly, Judiciary Law § 751 does not apply, and the Family Court was authorized to commit the father to jail for a period of 42 months upon the court’s finding that, on 10 separate occasions, the father violated temporary orders of protection issued under article 10 of the Family Court Act … . Matter of Austin C. (Rasaan K.C.), 2026 NY Slip Op 04944, Second Dept 8-12-26

 

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THIS MATTER WAS SENT BACK FOR CONSIDERATION OF DEFENDANT’S YOUTHFUL OFFENDER STATUS; THE RULING ON REMAND DEMONSTRATED THE JUDGE WAS NOT AT ALL FAMILIAR WITH DEFENDANT’S CRIMINAL HISTORY AND WAS IN FACT MISTAKEN ABOUT IT; MATTER REMANDED AGAIN (FIRST DEPT).

he First Department, reversing Supreme Court’s ruling on remand to consider defendant’s youthful offender (YO) status, determined the judge was confused about defendant’s criminal history and in fact was mistaken about it  The case was remanded again:

In making a YO treatment determination, sentencing courts may consider “the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant’s reputation, the level of cooperation with authorities, defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” … . While courts are not required to place their reasons for denying YO treatment on the record … , at minimum, YO consideration requires the court to have familiarity with the relevant facts and circumstances of the case before it (see CPL 720.20[1][a]).

Here, the sentencing court tracked the statutory language in denying defendant YO treatment. However, it is unclear whether the court was cognizant of the relevant facts and circumstances of defendant’s case to appropriately consider YO treatment, much less the Cruickshank factors (105 AD2d at 334).

At the very least, this record calls into question whether defendant was appropriately considered for YO treatment. The sentencing court’s confusion exposes that it was so unaware of the facts of the underlying offense that we cannot be sure it considered the mitigating factors specific to this defendant that might warrant YO treatment, i.e. that the instant offense is defendant’s first conviction, signaling that he is not a hardened criminal; defendant’s expressed remorse, despite acting in self-defense; the overt steps he has taken to lead a law-abiding life; or the lack of serious injuries to the victim. People v Marcus T., 2026 NY Slip Op 04913, First Dept 8-6-26

Practice Point: Courts need not place the reasons for denial of YO status on the record. But the court must be aware of the relevant facts and circumstance of the case. Here the judge demonstrated he did not know the defendant’s criminal history, requiring reversal.

 

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A SORA COURT JUDGE HAS THE INHERENT POWER TO, SUA SPONTE, REOPEN A SORA HEARING TO CORRECT AN ERROR (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Dowling, joining the First and Fourth Departments, determined a judge has the authority to, sua sponte, reopen a SORA hearing to correct a mistake:

​Given the Supreme Court’s error, and considering the inherent power of a court to reconsider its own intermediate determinations, together with the overriding purposes and objectives of SORA, we find no wrong in the Supreme Court’s sua sponte correction of its initial failure to assess points under risk factors 3 and 5. There is no benefit to a defendant, the People, or the public in prohibiting a SORA court tasked with determining an offender’s presumptive risk level from, sua sponte, correcting its own erroneous determination … . People v Allen, 2026 NY Slip Op 04880, Second Dept 8-5-26