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THE POLICE STARTED FOLLOWING DEFENDANT BECAUSE THEY THOUGHT HE CROSSED THE STREET TO AVOID THEM; THE POLICE DID NOT HAVE GROUNDS FOR A COMMON-LAW INQUIRY AND NOTHING DEFENDANT DID AFTER THE STREET STOP JUSTIFIED THE LEVEL THREE SEIZURE OF THE DEFENDANT; THE WEAPON FOUND IN DEFENDANT’S POCKET SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined what the police saw did not warrant a common-law inquiry on the street and the subsequent level three seizure of the defendant was not justified. Apparently the police felt defendant crossed the street to avoid them, the police followed him and saw him pass something to a woman, after defendant was stopped he was told to take his hand out of his jacket pocket and did so, the officer testified a heavy object was in the jacket pocket, the defendant was then handcuffed and a handgun was found in the pocket:

Defendant’s suppression motion should have been granted. Although we decline to disturb the court’s credibility determinations … , notwithstanding our concerns about discrepancies between the officers’ testimony and what is shown in the body-worn camera footage, the initial inquiry and subsequent seizure were still unjustified. Even crediting the officers’ testimony that their suspicion was aroused when defendant and the woman crossed the street to avoid their patrol car, and then they later observed him pass a small object to the woman, the totality of the circumstances did not give rise to the level of suspicion required for a common-law inquiry … . Neither officer could identify what object was passed from defendant to the woman — one testified that “it could have been anything” — nor otherwise articulate why, from this innocuous behavior, they had a “founded suspicion that criminality was afoot” to warrant a level two encounter … . The police were not responding to a call, there was ambiguous testimony as to whether the encounter took place in a high crime area, and the woman did not give defendant money in exchange or immediately leave “without any kind social interaction” … .

Similarly, this Court’s review of the record, including the body-worn camera video recording of the encounter, indicates that the police were not justified in their escalation to the level three seizure in restraining defendant’s wrists simply because, after he was detained, and defendant complied with the officers’ request that he show his hands, he turned his body away from one officer, who observed a “shift in weight” in defendant’s jacket pocket … . Even if there had been a bulge in defendant’s pocket, that observation alone does not imply a reasonable conclusion that defendant was armed … . Defendant’s hands were in clear view when the officers seized him, and nothing in the record indicates that defendant was armed or posed a threat to safety to justify him being frisked … . People v Small, 2025 NY Slip Op 06665, First Dept 12-2-25

Practice Point: This decision illustrates the level of suspicion required to justify a common-law inquiry on the street. Here the police thought the defendant crossed the street to avoid them and they saw defendant pass something to a woman, but could not say what it was. That was not enough.

Practice Point: This decision also illustrates the level of suspicion required to justify a level three seizure on the street. Here defendant was told to remove his hand from his pocket and did so. The police testified there was a bulge in the pocket, but defendant’s hands were visible. The police were not justified in handcuffing the defendant and searching his pocket.

 

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A CONFERENCE IN CHAMBERS ABOUT WHETHER DEFENDANT WAS FIRED BECAUSE OF THE SEX ABUSE ALLEGATIONS WHICH WERE THE SUBJECT OF THE TRIAL WAS DEEMED TO BE A MATERIAL STAGE OF THE TRIAL AT WHICH DEFENDANT SHOULD HAVE BEEN PRESENT BECAUSE DEFENDANT HAD FIRST-HAND KNOWLEDGE OF THE FACTS; THE COURT RULED EVIDENCE OF THE FIRING COULD BE PRESENTED; DEFENSE COUNSEL’S WAIVER OF DEFENDANT’S PRESENCE WAS DEEMED INSUFFICIENT; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s sex-offense convictions and ordering a new trial, determined it was error to fail to include the defendant in sidebar and chambers conferences and defense counsel’s waiver of defendant’s presence was insufficient:

… County Court did not at any point advise defendant of his right to be present during sidebar conferences. * * * … [A]fter jury selection concluded but before the trial began, a conference was held with the attorneys in chambers wherein defendant plainly was not present. During this conference, County Court heard arguments from both defense counsel and the prosecutor regarding the admissibility of certain evidence, including testimony that defendant was fired from his job at the YMCA following the [sexual abuse] incident in question. There was discussion by the attorneys and the court as to the reason for defendant’s termination and whether it was based upon the charged conduct in this case. The court ruled that evidence of defendant’s firing would be allowed. It was only after it had issued its ruling that the court acknowledged that defendant was not present, whereupon defense counsel stated, “I can waive his appearance.”

Noting that the conference was conducted for the purpose of determining the admissibility of proposed testimony, and further recognizing that defendant presumably had personal knowledge of the circumstances surrounding his firing such that he would have been able to meaningfully participate in the discussion … , we find that this conference constituted a material stage of the trial at which defendant had the right to be present. In that regard, the transcript of the conference makes apparent that County Court’s ultimate ruling on this issue turned on the precise reason for defendant’s termination, and defendant was deprived of the opportunity to assist his counsel in advocating against the admission of the subject testimony. Therefore, it cannot be said “that defendant’s presence would have been useless, or the benefit but a shadow” … . People v Benton, 2025 NY Slip Op 06559, Third Dept 11-26-25

Practice Point: Consult this decision for insight into when the failure to include defendant in a sidebar or chambers conference will be deemed reversible error.

 

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THE EVIDENCE DID NOT SUPPORT THE FINDINGS THAT MOTHER AND FATHER NEGLECTED THE NEWBORN WHO TESTED POSITIVE FOR AMPHETAMINES AND DOCTOR-PRESCRIBED SUBUTEX; THERE WAS NO EVIDENCE THE CHILD’S LOW BIRTH WEIGHT AND NEED FOR COMFORTING WAS RELATED TO AMPHETAMINES AS OPPOSED TO THE SUBUTEX; FATHER’S “HOSTILE” BEHAVIOR TOWARD PETITIONERS AND HIS REFUSAL TO SIGN A BIRTH CERTIFICATE WERE NOT VALID GROUNDS FOR A NEGLECT FINDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence did not support finding mother and father had neglected the newborn child based upon positive toxicology results for amphetamines and Subutex. Subutex had been prescribed by a doctor. Mother admitted using a methamphetamine once during the pregnancy. The evidence did not demonstrate a causal connection between the child’s low birth weight and need for extra comforting and the use of amphetamines as opposed to the doctor-prescribed Subutex:

In finding that the child had been neglected by the mother, Family Court referenced the positive toxicology results and the mother’s admission to having used “ICE.” The court also referenced that the child was born with a “low birth weight consistent with experiencing in utero drug exposure.” While the hospital records confirm the child was “small for gestational age,” there was no testimony linking this to the mother’s use of amphetamines/methamphetamines during pregnancy. The court also cited to the child exhibiting “telltale signs of drug exposure, exhibiting increased tremors when disturbed, high pitch crying and a need for extra comforting.” There was testimony from a registered nurse who cared for the child that the child had withdrawal symptoms, such as a “high-pitched, shrill cry” and “constantly need[ing] to be held and have human touch.” However, there was no testimony as to whether the child’s small birth weight and withdrawal symptoms were related to the mother’s methamphetamine use, rather than her use of Subutex, which her unrefuted testimony demonstrates was prescribed by a doctor.[FN2] In fact, the mother testified that, during her pregnancy, medical professionals informed her that using Subutex would be fine for the child, that there would not be any side effects, but there may be “some withdrawals.” * * *

We reach the same result regarding the father’s neglect finding, which was based upon the father’s behavior toward petitioner’s staff, as well as hospital staff, which was “hostile beyond what would be deemed acceptable by a reasonable and prudent standard.” The finding was also based upon the father’s refusal to sign a birth certificate or acknowledgement of paternity, “effectively abandoning the child when the mother was deemed to be an unsafe caregiver.” There is no support in the law that either of these behaviors constitute neglect, nor did petitioner “demonstrate that [the child’s] physical, mental or emotional condition was in imminent danger of being impaired” based upon these behaviors … . And finally, Family Court imputed the father with knowledge of the mother’s drug use and found that he neglected the child “by failing to exercise a minimum degree of care to prevent the mother from abusing drugs during her pregnancy.” This statement exaggerates what the testimony revealed was the extent of the mother’s drug use during pregnancy, and there simply was no evidence regarding the father’s knowledge of her use … . Matter of Raivyn BB. (Courtney BB.), 2025 NY Slip Op 06564, Third Dept 11-26-25

Practice Point: A newborn’s testing positive for amphetamines is not enough to support a neglect finding without proof the baby’s low birth weight and need for comforting was caused by amphetamines.

Practice Point: Father’s “hostile” attitude and refusal to sign the birth certificate were not valid grounds or a neglect finding.

 

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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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DEFENDANTS DID NOT PRODUCE A SURVEILLANCE VIDEO DEPICTING PLAINTIFF’S ACCIDENT UNTIL AFTER PLAINTIFF’S DEPOSITION; DEFENDANTS ARE PRECLUDED FROM INTRODUCING THE VIDEO IN EVIDENCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s should have been precluded from introducing in evidence a surveillance video depicting plaintiff’s accident. Although the video had been explicitly demanded by plaintiff, defendants did not produce it until after plaintiff’s deposition, six months after the entry of the compliance order:

Supreme Court improvidently exercised its discretion in denying plaintiff’s motion seeking discovery sanctions. Plaintiff demonstrated that defendants acted willfully and contumaciously when they failed to turn over video footage of plaintiff’s accident … . Defendants failed to produce the video in response to repeated explicit demands and repeatedly denied the existence of any video of plaintiff’s accident. It was not until after plaintiff’s deposition on May 20, 2024 and during the June 27, 2024 deposition of defendants’ building manager that defendants revealed the existence of the video. While only six months elapsed from entry of the compliance order to the belated production of the video, it cannot be said that plaintiff was not prejudiced by the late production. Defendants should be sanctioned for their dilatory behavior in producing the surveillance video after plaintiff’s deposition had already taken place … .

Given the totality of the circumstances, Supreme Court should have granted the lesser sanction of preclusion … . Larue v 1201-31 Lafayette Ground Gowner LLC, 2025 NY Slip Op 06546, First Dept 11-25-25

Practice Point: Here there was an explicit demand for any video of plaintiff’s accident but defendants did not produce to video until after plaintiff’s deposition. Introduction of the video in evidence was precluded.

 

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PETITIONERS, THE NEW YORK TAXI WORKERS ALLIANCE, HAD STANDING TO CONTEST THE NYC TAXI AND LIMOUSINE COMMISSION’S PILOT PROGRAM WHICH WOULD ADD 2500 FOR-HIRE VEHICLES TO THE CITY STREETS; PETITIONERS DEMONSTRATED THE ADDED VEHICLES WOULD REDUCE MEMBERS’ INCOME (INJURY-IN-FACT) IN VIOLATION OF A LOCAL LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, reversing Supreme Court, determined the petitioners, the New York Taxi Workers Alliance and two individual drivers, had standing to challenge a pilot program initiated by the NYC Taxi and Limousine Commission as violating a Local Law. The pilot program would put 2500 more for-hire vehicles (FHV’s} on the street. Petitioners argued standing based on evidence the pilot program will lower the income of the members of the Taxi Workers Alliance. Supreme Court had held the loss-of-income claim was speculative:

… [P]etitioners established both an injury in fact and that their alleged harm satisfies the zone of interest requirement, and they therefore have standing.

… [P]etitioners allege a concrete, particularized harm: a loss of income and a deterioration of driver well-being occasioned by the introduction or potential introduction of additional vehicles into the for-hire market. That harm is neither speculative nor conjunctural; rather, it is well-demonstrated by the legislative facts underpinning Local Law 147, which facts are based, in part, on industry data. Moreover, petitioners’ alleged harm is supported by the findings of the Committee on For-Hire Vehicles as expressed in their reports. The legislative materials evince a clear connection between the number of FHVs on the streets and driver income: when the number of FHVs increases without a corresponding increase in passenger demand, driver income decreases. * * *

… [P]etitioners demonstrated that the alleged harms of loss of income and deterioration of driver well-being fall within the zone of interests or concerns promoted or protected by Local Law 147. Two of the principal interests or concerns expressly promoted or protected by the law are driver income and driver well-being (see Administrative Code § 19-550[a]; 35 RCNY 59A-06[a][1]), and the significant legislative history of Local Law 147 confirms that the City Council was concerned with the human costs associated with the exceptional growth in the FHV market, particularly drivers’ ability to earn a living. Matter of New York Taxi Workers Alliance v New York City Taxi & Limousine Commission, 2025 NY Slip Op 06551, First Dept 11-25-25

Practice Point: To have standing to challenge a local law, the challenger must demonstrate an injury-in-fact and the injury is within the scope of the protections afforded by the local law.

 

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DEFENDANT WAS COOPERATIVE DURING HIS ARREST; HIS SUBSEQUENT RESISTANCE, THEREFORE, DID NOT CONSTITUTE “RESISTING ARREST;” INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s resisting-arrest conviction was against the weight of the evidence and dismissed the indictment. Defendant was cooperative when he was placed under arrest. His subsequent resistance, therefore, did not constitute resisting arrest:

As the People concede, defendant’s conviction of resisting arrest was against the weight of the evidence … . The undisputed evidence established that defendant was cooperative when he was placed under arrest, handcuffed, physically restrained, and surrounded by police officers … . Defendant’s subsequent physical resistance does not constitute resisting arrest, as he could not have intentionally “prevented or attempted to prevent a police officer from effecting an authorized arrest” by doing so (Penal Law § 205.30). People v Nesmith, 2025 NY Slip Op 06555, First Dept 11-25-24

Practice Point: Any resistance by a defendant which occurs after arrest does not constitute the crime of “resisting arrest.”

 

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BECAUSE THERE IS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THAT THE PROPERTY PURCHASED BY A CHURCH WAS NOT BEING USED AS A RETREAT IN VIOLATION OF THE ZONING LAWS AND THEREFORE IS TAX EXEMPT, THE COURT OF APPEALS IS CONSTRAINED TO AFFIRM; THERE WAS A THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined Supreme Court and the Appellate Division properly ruled that the property in Sullivan County purchased by a church in Queens was not being used in violation of the zoning laws and was tax-exempt. The factual question was whether the property was being used as a retreat for church members, which would violate the zoning laws, or whether the property was being used to grow vegetables, which would not violate the zoning law. The majority held it was constrained to affirm because there was support in the record for the factual findings made by Supreme Court:

These proceedings under the Real Property Tax Law present a factual dispute about how a church based in Flushing, Queens, actually used a property it purchased in the Town of Callicoon. Because the lower courts committed no legal error, and because we may not reweigh facts or redetermine issues of credibility, we affirm. * * *

Our role is not to substitute our judgment for that of the hearing court but rather to determine whether there is record support for the decision it reached. Here, the trial record supports Supreme Court’s finding, affirmed by the Appellate Division, that although petitioner may have purchased the property with the intention of using it as a “retreat,”[FN4] its actual use of the property was to clear approximately one acre of the parcel and, on that cleared area, grow vegetables for charitable distribution to low-income Queens residents. The only other trial evidence about actual use of the property was that the Town Supervisor, who lived across the street from the subject property, regularly harvested hay from the property and never saw any overnight use of the property for “retreat” purposes. Matter of First United Methodist Church in Flushing v Assessor, Town of Callicoon, 2025 NY Slip Op 06526. CtApp 11-24-25

Practice Point: The Court of Appeals is constrained to accept the lower courts’ factual findings if there is support for them in the record.

 

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DEFENDANT MOVED TO SUPPRESS THE WEAPON SEIZED FROM DEFENDANT’S VEHICLE AFTER A TRAFFIC STOP ON THE GROUND THERE WAS NO PROBABLE CAUSE FOR THE STOP; THE POLICE CLAIMED THE REASON FOR THE STOP WAS DEFENDANT’S FAILURE TO WEAR A SEATBELT; SURVEILLANCE VIDEOS WHICH WOULD HAVE SHOWN WHETHER DEFENDANT WAS WEARING A SEARBELT WERE NOT PRESERVED; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AN ADVERSE INFERENCE CHARGE IN CONNECTION WITH THE SUPPRESSION MOTION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for legal argument and, if defendant so requests, reopening of the suppression hearing, determined defendant did not receive effective assistance of counsel. Surveillance videos which would have shown whether defendant was not wearing a seatbelt (the claimed probable cause for the stop) were not preserved. Defendant moved to suppress the weapon seized from the vehicle on the ground there was no probable cause for the traffic stop. Defense counsel was deemed ineffective for failing the request an adverse inference charge:

… [T]he single omission of failing to request that the court consider an adverse inference charge at the suppression hearing deprived defendant of meaningful representation … . Defense counsel’s error in failing to make that argument was sufficiently egregious and prejudicial as to deprive defendant of his constitutional right to effective legal representation because the only evidence presented by the People at the hearing was testimony from one of the arresting officers, whose testimony was inconsistent at times, and an adverse inference charge could have successfully undermined the officer’s testimony on the issue of probable cause to stop defendant, i.e., whether defendant was, in fact, not wearing a seatbelt. Indeed, suppression of the gun that was seized as a result of defendant’s encounter with the police would have been dispositive of the sole count of the indictment, charging defendant with criminal possession of a weapon in the second degree … . Under the circumstances of this case, defense counsel’s failure to request an adverse inference charge could not have been grounded in legitimate strategy … . We note that defendant’s contention survives his guilty plea inasmuch as he demonstrated that defense counsel’s error infected the plea bargaining process … .

We therefore conditionally modify the judgment by remitting the matter to Supreme Court “for further proceedings on the suppression application, to include legal argument by counsel for both parties and, if defendant so elects, reopening of the hearing” … . In the event that defendant prevails on the suppression application, the judgment is reversed, the plea is vacated and the indictment is dismissed and, if the People prevail, then the judgment “should be amended to reflect that result” … . People v Evans, 2025 NY Slip Op 06477, Fourth Dept 11-21-25

Practice Point: Here surveillance videos which would have shown whether defendant was not wearing a seatbelt (the claimed probable cause for the traffic stop) were not preserved. Defendant moved to suppress the weapon seized from the vehicle on the ground there was no probable cause for the stop. Defense counsel was deemed ineffective for failing to request an adverse inference charge with respect to the suppression hearing. The remedy: the matter was remitted for legal argument and, if defendant requests, reopening of the suppression hearing.

 

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IN THIS DRAM SHOP ACT CASE, DEFENDANT BAR DID NOT DEMONSTRATE DEFENDANT DRIVER WAS NOT VISIBLY INTOXICATED WHEN SERVED AND THEREFORE DID NOT MEET ITS INITIAL BURDEN FOR ITS SUMMARY JUDGMENT MOTION; A TWO-JUSTICE DISSENT ARGUED DEFENDANT BAR MET ITS INITIAL BURDEN, THUS SHIFITNG THE BURDEN TO THE PLANTIFF (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined, in this Dram Shop Act case, defendant bar did not demonstrate defendant driver was not visibly intoxicated when served alcohol. The dissenters argued the bar met its initial burden on its motion for summary judgment:

In support of the motion, defendant submitted evidence that, throughout the evening preceding the accident, plaintiff and a group of others—including the driver—were out celebrating and consumed alcohol. Just before they went to defendant’s bar, the entire group had been denied entry into another establishment because some members of the group were visibly intoxicated. At defendant’s bar, the group was served and consumed more alcohol. Although defendant’s owner and employees testified that defendant’s employees as a general practice do not allow visibly intoxicated persons to drink alcohol and that the employees were trained to recognize visibly intoxicated people, no one could specifically recall seeing the driver, nor could they describe the driver’s level of intoxication on the night at issue … . In fact, none of the deposition testimony submitted by defendant was from an individual physically present inside the bar at the time the driver was allegedly served.

From the dissent:

…. [W]e conclude that defendant met its initial burden on the motion by submitting uncontradicted deposition testimony “in which its employees averred that they had no recollection that [the driver] was visibly intoxicated while she was . . . at [defendant]’s establishment” … . … [D]efendant’s employees testified that staff are trained to recognize visibly intoxicated persons; that bartenders do not allow visibly intoxicated persons to drink alcohol; and that bouncers do not allow visibly intoxicated persons to enter the bar, that they make rounds inside the establishment in order to observe the patrons and determine if anyone is visibly intoxicated, and that they signal the bartenders to stop serving alcohol to patrons who are visibly intoxicated. Additionally, a bouncer testified that he recalled conducting “rounds inside the establishment” on the night of the incident and that he observed the patrons, as was his routine, but did not “signal[ ] to the bartenders that anyone was intoxicated.” Gonzalez v City of Buffalo, 2025 NY Slip Op 06423, Fourth Dept 11-21-25

Practice Point: In moving for summary judgment in a Dram Shop Act case, the defendant bar had the initial burden to demonstrate it did not serve a visibly intoxicated defendant. Because the majority concluded that initial burden was not met, the summary judgment motion was denied without the need to consider the plaintiff’s response. The dissent disagreed with the majority and argued the bar had met its initial burden.​

 

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