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

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

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

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

 

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THE PROOF OF ALL THE CHARGES, INCLUDING THE DEPRAVED INDIFFERENCE MURDER OF A TWO-YEAR-OLD CHILD, WAS SUFFICIENT TO SUPPORT THE CONVICTIONS; HOWEVER THE IMPROPER ADMISSION OF MOLINEUX EVIDENCE AND OTHER EVIDENTIARY ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined that the proof was sufficient to support all the convictions, including depraved indifference murder of a two-year-old child. Defendant claimed the child fell from a bunk bed. But the injuries were catastrophic and included a depressed skull fracture. A new trial was required because of evidentiary errors by the judge, including the admission of prior crimes and bad acts as Molineux evidence:​

Prior to trial, County Court partially granted the People’s Molineux application to the extent of allowing testimony pertaining to defendant’s prior acts of domestic violence and aggression toward the mother, as well as his 2011 conviction of aggravated driving while intoxicated (hereinafter DWI) with a minor in the car. … The People elicited trial testimony from the mother about a December 2017 incident in which defendant became explosively angry while drinking and “trash[ed]” her house; however, “[n]othing was physical” on that occasion. The mother also testified about a January 2018 incident in which defendant was physically violent, revealing that he had repeatedly punched her in the face and in the arm on that occasion. The People were allowed to introduce photographs of the bruises the mother sustained during the January 2018 incident. The evidence regarding defendant’s DWI conviction was referenced during his interview at the Sheriff’s Department in connection with the underlying incident, which was published to the jury.

The December 2017 incident of aggression did not involve physical violence, as alleged here, and was not probative of any issue in this case … . … [T]he photographs depicting the mother’s injuries from the January 2018 incident should not have been admitted into evidence, as they provided the ]jury with a visualization of defendant’s past violent conduct and were extremely prejudicial in the context of a prosecution requiring proof that defendant acted with a level of depravity sufficient to sustain a conviction under Penal Law § 125.25 (4) … . … The evidence pertaining to defendant’s 2011 DWI conviction also should not have been admitted, as it was not probative of any issue in the case, did not fit within any recognized Molineux exception, and was unduly prejudicial since it involved a different child and tended to suggest to the jury that defendant was previously reckless with a minor in his care while consuming alcohol. Since the proof of defendant’s guilt was entirely circumstantial and was not overwhelming, these improper Molineux rulings cannot be considered harmless … . People v Bohn, 2025 NY Slip Op 05846, Third Dept 10-23-25

Practice Point: Consult this decision for insight into what is and what is not admissible prior crime and bad-act (Molineux) evidence in a murder trial.

 

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THE PEOPLE’S FAILURE TO TURN OVER TO THE DEFENSE A VIDEO CONTAINING IMPEACHMENT MATERIAL PRIOR TO FILING A CERTIFICATE OF COMPLIANCE RENDERED THE CERTIFICATE OF COMPLIANCE AND THE STATEMENT OF READINESS ILLUSORY; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment on speedy trial grounds, in a full-fledged opinion by Justice Pritzker, determined the People were required to turn over a child advocacy center (CAC) video before filing a certificate of compliance (COC) and statement of readiness (SOR). The CAC video was not turned over until 20 days before trial:

… [T]he People conceded that the CAC video contained impeachment evidence based upon certain statements made by the victim … , and also that the CAC video had been turned over by the CAC to law enforcement and, as such, was in the People’s possession as of January 22, 2020 … . Despite this, the CAC video was not turned over to defendant until September 1, 2021, 20 days before trial, even though the People filed an earlier COC and SOR in October 2020. Specifically, the COC dated October 16, 2020 referenced an index detailing the materials that had been disclosed to defendant as of that date. This index reveals two compliance reports, one dated February 28, 2020 and the other dated October 1, 2020. As relevant here, the February 28, 2020 compliance report lists a document titled “CAC Chain of Custody – 01.22.2020.pdf” as having been turned over to defendant. There is no dispute that, while this chain of custody form for the CAC video was included in discovery, the video itself was not. * * *

… [H]ere, we are faced with a situation where the People certified, allegedly in good faith, that “the prosecutor has disclosed and made available all known material and information subject to discovery” … , despite knowing full well that they were intentionally withholding the CAC video. As such, we find that the People did not file the October 2020 COC in good faith as they did not make “all known material and information subject to discovery” available to defendant … . Further compounding their error, the People did not give defendant any notice of this withholding, either by withholding the CAC video and requesting a protective order … in the first instance, or, later, giving defendant notice that the CAC video was purportedly being withheld so as not to disclose any identifying information of the victim … . … [B]ecause we find that the October 2020 COC and SOR were illusory, the People did not validly announce readiness for trial until September 2021, which the People concede would be outside of the applicable six-month CPL 30.30 time frame. Thus, this Court must dismiss the indictment … . People v Mazelie, 2025 NY Slip Op 05849, Third Dept 10-23-25

Practice Point: Here the People’s failure to turn over impeachment evidence before filing the certificate of compliance rendered the certificate illusory and required dismissal of the indictment.

 

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IT WAS AN ABUSE OF DISCRETION TO RETURN THE CHILD TO MOTHER DURING THE PENDENCY OF NEGLECT PROCEEDINGS; MOTHER HAD INJURED THE CHILD AND THERE WAS INSUFFICIENT EVIDENCE THE IMPOSITION OF CONDITIONS FOR THE CHILD’S RETURN WILL ENSURE THE CHILD’S SAFETY (FIRST DEPT).

The First Department, reversing Family Court, determined mother’s application during the neglect proceedings for the return of her child should have been denied:

Family Court’s finding that the child should be returned to the mother lacked a sound and substantial basis in the record … .  Although the court properly determined, based on the evidence of the child’s physical injuries and her statements, that the mother was the person who inflicted the injuries, it was an improvident exercise of discretion to determine that the risk of harm could be mitigated by the conditions it imposed on the mother in the order under review … .

The court improvidently minimized both the nature and extent of the risk to the child and overstated the potential impact of its order on the child’s safety. Nothing in the mother’s testimony indicated that she understood the emotional harm she caused the child or expressed any genuine remorse over her actions. Initially, she tried to attribute the child’s injuries to an unrelated incident that took place several months earlier. She then claimed to be unaware of how the injuries occurred and ultimately opted to “plead the fifth.” Taken as a whole, the mother’s testimony reflects a lack of insight into how her conduct led to the child’s removal from her care. This lack of understanding further undercuts Family Court’s conclusion that services would be sufficient to mitigate the risk of harm posed to the child while in the mother’s care, and its belief that the mother would comply with the service plan. Although the mother took steps to enroll in services, the mere enrollment is insufficient to overcome the substantial evidence indicating that returning the child to her care would pose a risk to the child’s health and safety. Matter of M.M. (Chelsea B.), 2025 NY Slip Op 05887, First Dept 10-23-25

Practice Point: Here Family Court’s determination that imposing conditions for the child’s return to mother, who had injured the child, would ensure the child’s safety was not supported by the evidence. Therefore it was an abuse of discretion to order the child’s return to mother during the pendency of the neglect proceedings.​

 

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PLAINTIFF WAS SEVERELY INJURED IN A FORKLIFT ACCIDENT AND BROUGHT THIS ACTION ALLEGING DEFECTIVE DESIGN; THERE WAS A DEFENSE VERDICT WHICH WAS REVERSED BECAUSE SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN ADMITTED AND SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN STRUCK (THIRD DEPT).

The Third Department, reversing the judgment finding the defendant’s forklift was not defectively designed, determined the admission and exclusion of expert evidence required a new trial. Plaintiff’s leg was crushed when the forklift he was operating struck a support beam in a warehouse. A portion of his leg was amputated. Defendant’s expert’s analysis was based in part on statistics that did not involve forklift-accidents and therefore was inadmissible. Plaintiff’s expert’s testimony about the need for future medical treatment was competent and should not have been struck:

Because the underlying data was specific to accidents involving defendant’s forklifts and plaintiff’s expert also relied upon and testified to that database, we find that Supreme Court properly allowed Marais [the defense expert]  to testify as to the rate of injuries sustained in the operation of defendant’s forklifts as computed from defendant’s database. However, the court abused its discretion in permitting testimony related to the utilization of the wider category of accidents involving “industrial truck and tractor operators,” as defendant failed to establish that the underlying conditions of those accidents were substantially similar to the facts presented here … . The core of Marais’ testimony was that the rate of injuries involving defendant’s forklifts was significantly lower than other industrial-related injuries. Even crediting that the federal database Marais utilized to make this comparison included forklift injuries, it also included a variety of other dissimilar industrial vehicles. In addition, there was no way to determine how many of the reported injuries therein were the result of forklift operations or, equally as important, the underlying conditions precipitating those accidents. * * *

… Supreme Court abused its discretion by striking Root’s (plaintiff’ medical expert’s] testimony and then limiting certain aspects of Thomas’ [plaintiff’s economist’s] testimony regarding plaintiff’s future medical expenses because the testimony was supported by “competent proof of necessary, anticipated medical costs through [a qualified physician] and [an] expert economist” … . Johns v Crown Equip. Corp., 2025 NY Slip Op 05856, Third Dept 10-23-25

Practice Point: Here plaintiff was injured in a forklift accident. Statistical evidence offered by defendant’s expert which included data that did not relate to forklifts should not have been admitted. To be admissible, statistical evidence must relate to substantially similar accidents.

Practice Point: Here the evidence of future medical procedures and costs offered by plaintiff’s medical expert and economist was competent and should not have been struck.

 

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THERE WAS NO PROOF THE OFFICER WHO FRISKED THE DEFENDANT AND REMOVED A WALLET FROM DEFENDANT’S POCKET SUSPECTED THE WALLET WAS A WEAPON; THE WALLET, WHICH HAD BEEN STOLEN FROM THE VICTIM, SHOULD HAVE BEEN SUPPRESSED; BECAUSE THE WALLET TENDED TO IDENTIFY DEFENDANT AS THE ROBBER, THE ERROR WAS NOT HARMLESS; NEW TRIAL ORDERED ON THE ROBBERY-RELATED OFFENSES (SECOND DEPT).

The Second Department, reversing the robbery-related convictions and ordering a new trial, determined the police did not have a lawful basis for removing a wallet from defendant’s pocket and examining its contents. There was no evidence that the lawful frisk of the defendant indicated the presence of a weapon. The wallet, which had been stolen from the victim, should have been suppressed. Because the robber was wearing a mask, finding the wallet on defendant’s person tended to identify defendant as the robber. The error in failing to suppress the wallet, therefore, was not harmless:

… [E]ven assuming that the officers were justified in performing a protective frisk … , there was no justification for searching the defendant’s pants pocket, reaching into it, and removing the wallet. In the course of conducting a protective pat-down based upon reasonable suspicion, “[o]nce an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion” … . There was no evidence presented at the suppression hearing that, during his frisk of the defendant, Nelson [the police officer] felt anything in the defendant’s pocket that seemed to be a weapon or that could have posed a danger to the officers at the scene. Indeed, Nelson did not testify at the hearing. Accordingly, there was no lawful basis for removing the wallet from the defendant’s pocket … , and that act violated the defendant’s Fourth Amendment right to be free from unreasonable searches and seizures … . The officers committed an additional constitutional violation when, after retrieving the wallet from the defendant’s pocket, they opened it and conducted a warrantless search of its contents … . Since the officers lacked the factual predicate necessary to search the defendant’s pocket and the wallet’s contents, the People failed to satisfy their burden of going forward to establish the legality of the police conduct in the first instance, and thus the wallet and its contents, seized as a result of that search, should have been suppressed … . People v Lewis, 2025 NY Slip Op 05823, Second Dept 10-22-25

Practice Point: If a street frisk does not indicate the presence of a weapon, the seizure and examination of a wallet found in defendant’s pocket has no lawful basis.

 

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THERE WAS NO EVIDENCE MOTHER’S MENTAL HEALTH ISSUES IMPAIRED THE CHILDREN; ONE INCIDENT IN WHICH MOTHER SLAPPED HER SON WHEN HE WAS RUDE AND DISRESPECTFUL DID NOT SUPPORT A FINDING OF EXCESSIVE CORPORAL PUNISHMENT (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence did not support the finding that mother had neglected her children. There was no evidence mother’s mental health issues put the children at risk. The evidence also did not support neglect based on excessive corporal punishment. Mother slapped her 14-year-old son once with an open hand when he refused to provide the password for his phone and was rude and disrespectful:

Although the record here suggests that the mother, who had been diagnosed with major depressive disorder, cannabis use disorder, adjustment disorder, and post-traumatic stress disorder, may have been non-compliant with her mental health treatment, the record does not contain evidence sufficient to support a finding of “a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child’s impairment or imminent danger of impairment” … . The only conduct linked to the mother’s mental health was the 14-year-old child’s statements to the caseworker that he feared being with the mother outside of the home because she believed they were being watched, and that she once took a photograph of a man on the subway platform whom she believed was following them. * * *

The mother slapped the 14-year-old child with an open hand when he refused to provide her with the passcode to his cell phone, was rude and disrespectful, and told her he wished she were dead. The mother testified that she demanded to see the child’s cell phone after the school called her to express concern over a change in the child’s behavior and his cell phone usage. The record indicates that the child did not report that the slapping caused him pain, nor were there any marks or bruising on his face or body. A parent has a common-law privilege to use reasonable physical force to discipline a child … . Matter of I.G. (D.V.), 2025 NY Slip Op 05766, First Dept 10-21-25

Practice Point: In the context off child neglect it is not enough to prove mother has mental health issues, it must be shown that mother’s mental health issues impair the children.

Practice Point: A parent has a common-law privilege to use reasonable physical force to discipline a child. A single open-handed slap in response to disrespectful and rude behavior by a 14-year-old is not “excessive corporal punishment.”

 

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DEFENDANT TOOK A CELL PHONE PICTURE OF THE VICTIM IN THE SHOWER THROUGH A HIGH WINDOW; HE CLAIMED THE PHOTO WAS TAKEN ACCIDENTALLY WHEN HE WAS TRYING TO PHOTOGRAPH LIGHTNING; DEFENDANT, IN ANSWER TO A QUESTION BY THE POLICE ABOUT WHETHER THIS WAS A “PATTERN,” ADMITTED HE HAD SURREPTITIOUSLY TAKEN SIMILAR PHOTOS OF HIS WIFE; THE PREJUDICIAL EFFECT OF HIS APPARENT ADMISSION TO A “PATTERN” OF SIMILAR BEHAVIOR OUTWEIGHED ITS PROBATIVE EFFECT; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction and ordering a new trial, determined that prior bad act “Molineux” evidence should not have been admitted because its probative value was outweighed by its prejudicial effect. Defendant, using his cell phone, had taken a picture of the victim in the shower through a high window. In his interview with the police defendant admitted taking similar pictures of his wife: “When confronted with a conversation that law enforcement allegedly had with his wife and whether the subject conduct was in fact part of a ‘pattern,’ defendant … admitted that he had previously engaged in similar surreptitious photography of his wife.” Defendant claimed the picture of the victim was taken accidentally when he was trying to photograph lightning:

[From the police interview with defendant:] “Now what’s the deal with when I asked your wife if this has been an issue in the past, she says you’ve done it to her, the exact same thing in the shower, and you guys have had blowouts,” adding, “So this has been a pattern, you know, it’s not like it was an accidental lightning strike thing.” Defendant replied, “I understand that. Yes, it’s my wife. I’m madly in love with her. I think she’s absolutely beautiful. Yeah, I’ve done that to my wife.” * * *

A criminal purpose cannot be readily inferred from the generally equivocal act of taking a photograph, later deleted, in the location where defendant was standing. Thus, defendant’s admission to previously taking surreptitious photographs of another woman while she showered because of his sexual interest in her was directly relevant to that legitimate nonpropensity issue … . Further, by inserting an innocent explanation for the charged conduct into the case, defendant’s prior similar acts had obvious relevance as tending to refute the possibility of mistake or accident … . * * *

… [A]lthough the challenged prior bad act evidence was highly probative with respect to the foregoing legitimate purposes, there is no way around the fact that the gratuitous “pattern” allegation made by law enforcement while questioning defendant substantially tipped the scale. It was an abuse of discretion not to redact that portion of the interview, together with defendant’s ambiguous “I understand that” response, prior to admitting the recording into evidence — particularly in view of how excisable it was. People v Siciliano, 2025 NY Slip Op 05721, Third Dept 10-16-25

Practice Point: Consult this decision for an example of evidence which fits a Molineux category [here a seeming admission to a “pattern” of taking surreptitious photos of women in the shower to counter defendant’s claim the photo of the victim in the shower was taken accidentally], but is inadmissible because the evidence is more prejudicial than probative.

 

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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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THE COLLAPSE OF A NEIGHBORING STRUCTURE WAS FORESEEABLE; PLAINTIFF, WHO WAS STRUCK BY A PIECE OF CONCRETE FROM THE STRUCTURE, WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the collapse of a neighboring structure which resulted in a piece of concrete striking the plaintiff, was foreseeable. Therefore the plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action:

Contrary to defendants’ position, the event was foreseeable, rendering Labor Law § 240(1) applicable and summary judgment on that claim appropriate … . Whether the collapse of a permanent structure is foreseeable is analyzed “not in a strict negligence sense, but in the sense of foreseeability of exposure to an elevation-related risk” … . Here, the possibility of insecurity in the foundation developing after adjacent demolition was well known to defendants, as evinced by the need for a support plan in the first instance. As noted by an expert engaged by defendants themselves in earlier motion practice, photographs of the facade showed poorly consolidated and deteriorated concrete with numerous voids, obvious discontinuities, several cold unbonded joints, and the appearance of having been constructed without steel reinforcing bars. It was thus foreseeable that the newly exposed and unsupported wall, or a portion thereof, would fail.

Moreover, plaintiffs established that [plaintiff’s] injuries were caused by the lack of any safety device of the kind enumerated in Labor Law § 240(1) to secure the neighboring foundation. Plaintiffs’ expert established that defendants failed to properly underpin the foundation of the adjoining building by bracing and shoring the “poor conditions of the concrete and the obvious presence of cold joints within the excavated pins of the underpinning work.” Moises-Ortiz v FDB Acquisition LLC, 2025 NY Slip Op 05746, First Dept 10-16-25

Practice Point: Here the collapse of the neighboring structure, injuring plaintiff, was foreseeable, entitling plaintiff to summary judgment on his Labor Law 240(1) cause of action.

 

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