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

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

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

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

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

 

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UNDER THE NEW DISCOVERY ARTICLE, CRIMINAL PROCEDURE LAW ARTICLE 245, THE DEFENDANT WAS ENTITLED TO “AUTOMATIC” DISCLOSURE OF THE TESTIMONY (IN A PRIOR CASE) OF AN ARRESTING OFFICER WHICH HAD BEEN DEEMED INCREDIBLE; THE FAILURE TO TURN OVER THE EVIDENCE RENDERED THE STATEMENT OF READINESS ILLUSORY; INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, affirming Supreme Court, in a full-fledged opinion by Justice Voutsinas, determined the Certificates of Compliance filed by the People were improper and the statement of readiness was  illusory because evidence which could be used to impeach the credibility of one of the arresting officers (Lt. Ruiz) was not turned over. The indictment was dismissed on speedy-trial grounds. The opinion is comprehensive and cannot be fairly summarized here:

This appeal concerns the new disclosure obligations in criminal cases, enacted by the New York State Legislature, effective January 1, 2020, as part of sweeping criminal justice reform legislation under the new CPL article 245 … . The new legislation provides, inter alia, for “[a]utomatic” disclosure by the People to the defendant of “all items and information that relate to the subject matter of the case” that are in the People’s possession or control (CPL 245.20[1]). Specifically, this appeal concerns CPL 245.20(1)(k)(iv), which requires that the People disclose “[a]ll evidence and information” that “tends to . . . impeach the credibility of a testifying prosecution witness.” We hold that, under the circumstances of this case, the People were required to disclose, pursuant to CPL 245.20(1)(k)(iv), underlying records from a prior case where one of the prosecution witnesses was found to be incredible, and that the Supreme Court properly determined, based upon the record before it, that the People’s certificates of compliance were improper, properly struck a statement of readiness as illusory, and properly granted the defendants’ motions, inter alia, pursuant to CPL 30.30 to dismiss the indictment on the ground that they were deprived of their statutory right to a speedy trial. * * *

This Court holds that the underlying records in the case in which Lt. Ruiz’s testimony was found to be incredible did relate to the subject matter of this case for impeachment purposes … . Here, the underlying records pertaining to Lt. Ruiz’s incredible testimony, including the transcript of his testimony, did relate to the subject matter of the case because the material went toward the weight of the credibility of the witness and could be used for impeachment purposes. Therefore, the People were required to provide the records. People v Coley, 2025 NY Slip Op 01945, Second Dept 4-2-25

Practice Point: Consult this decision for a comprehensive discussion of the People’s obligation to provide “automatic” disclosure of evidence which can be used to impeach the credibility of an arresting officer.

 

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THE POLICE TESTIMONY AT THE SUPPRESSION HEARING WAS NOT WORTHY OF BELIEF; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE POLICE CONDUCT; INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, determined the police did not demonstrate the legality of the street stop which culminated in the pursuit of the defendant and the seizure of the firearm in defendant’s possession. The testimony of the arresting officer, Tofalli, at the suppression hearing was deemed unworthy of belief. Therefore the People did not meet their initial burden at the hearing, i.e., proving the legality of the police conduct:

“‘In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed'” … . Reasonable suspicion exists where there is a “quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [or woman] under the circumstances to believe criminal activity is at hand” … . “A suspect’s flight alone or in conjunction with equivocal circumstances that might suggest a police request for information is insufficient to justify pursuit,” and “[p]ursuit is only authorized when flight is combined with circumstances indicating that the suspect might be engaged in criminal activity” … .

Here, the People failed to establish the legality of the police conduct in the first instance, as Tofalli’s testimony was incredible as a matter of law and patently tailored to meet constitutional objections … . Tofalli’s testimony that when the defendant pulled up his pants he was able to see an “L-shape” outline in the defendant’s waistband while the initial target was standing two feet in front of the defendant directly between Tofalli and the defendant defies common sense and strains credulity. Moreover, Tofalli’s testimony was inconsistent with the notes he made in his memo book, arrest reports generated after the incident, and his testimony before the grand jury, none of which made any mention of the initial target … , and was further inconsistent with the recording obtained from Tofalli’s body-worn camera, which revealed that prior to his interaction with the initial target, the defendant was not touching his pants, and does not depict the defendant’s T-shirt tightening around an “L-shape” object. Accordingly, under the circumstances presented, we find Tofalli’s testimony unworthy of belief … . People v Black, 2025 NY Slip Op 01943, Second Dept 4-2-25

Practice Point: The flight of the subject of a street stop, without some other indication of criminal activity, does not justify pursuit.

Practice Point: If the police testimony at the suppression hearing is not worthy of belief, the People have failed to meet their burden to demonstrate the legality of the police conduct. Suppression must be granted.

 

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

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

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

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

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

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

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

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

 

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PROOF THAT THE WEAPON WAS LOADED WHEN IT WAS FOUND THE DAY AFTER DEFENDANT POSSESSED IT WAS NOT SUFFICIENT TO SUPPORT THE CRIMINAL-POSSESSION-OF-A-WEAPON-SECOND-DEGREE COUNT (SECOND DEPT).

The Second Department, reversing defendant’s conviction on a count charging criminal possession of a weapon second degree, determined the People did not prove the firearm was loaded at the time defendant possessed it:

… [W]e find that [the evidence] was legally insufficient to establish, beyond a reasonable doubt, the defendant’s guilt of criminal possession of a weapon in the second degree as charged under count 9 of the indictment, which pertained to the Intratec firearm. A person is guilty of criminal possession of a weapon in the second degree when, inter alia, with intent to use the same unlawfully against another, such person possesses a loaded firearm (see Penal Law § 265.03[1][b]). Here, the evidence presented by the People …. was legally sufficient to establish that the defendant possessed the Intratec firearm in Queens on July 8, 2007. However, the People did not present any evidence that the Intratec firearm was loaded at the time that it was in the defendant’s possession in Queens on July 8, 2007, as charged under count 9 of the indictment … . Rather, the People merely presented evidence that the Intratec firearm was loaded at the time that it was found by the police in a garage in Brooklyn approximately one day later on July 9, 2007. Under these circumstances, the evidence was legally insufficient to establish, beyond a reasonable doubt, the defendant’s guilt of criminal possession of a weapon in the second degree as charged under count 9 of the indictment … . People v Bostic, 2025 NY Slip Op 01816, Second Dept 3-26-25

Practice Point: Proof that a firearm was loaded on July 9 does not prove the firearm was loaded when defendant possessed it on July 8.​

 

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

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

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

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

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

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

 

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PLAINTIFF ALLEGED DEFENDANT HOSPITAL WAS NEGLIGENT IN PLACING HIM IN A ROOM WITH A PERSON WITH COVID; PLAINTIFF WAS ENTITLED TO DISCOVERY OF THAT PERSON’S MEDICAL RECORDS TO DETERMINE WHEN THE HOSPITAL BECAME AWARE OF THE COVID DIAGNOSIS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to discovery of another’s medical records. Plaintiff alleged the hospital was negligent in placing plaintiff in a room with a person with COVID. The sought medical records may reveal when the hospital became aware of the COVID diagnosis:

Although “discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse” … . CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “What is material and necessary is left to the sound discretion of the lower courts and includes any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” … .

Pursuant to CPLR 4504 (a), “a person authorized to practice medicine . . . shall not be allowed to disclose any information which [they] acquired in attending a patient in a professional capacity, and which was necessary to enable [them] to act in that capacity.” The physician-patient privilege may be overcome, however, where the plaintiff establishes that the information in the medical records is material and necessary to their claim … . Here, plaintiffs established that the nonparty patient’s hospital records would show when defendant, its agents, servants and employees became aware that the patient had tested positive for COVID-19 and that such information is material and necessary to establish whether defendant had notice that it was placing plaintiff in the same room as a person who had COVID-19 … . Martin v Kaleida Health, 2025 NY Slip Op 01756, Fourth Dept 3-21-25

Practice Point: Here plaintiff was entitled to limited discovery of another’s medical records because the records were “material and necessary to the prosecution of the action.”

 

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IN THIS STRANGULATION CASE, A POLICE OFFICER’S TESTIMONY ABOUT UNRELATED ALLEGED STRANGULATIONS INVOLVING OTHER COMPLAINANT’S DEPRIVED DEFENDANT OF A FAIR TRIAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s strangulation conviction and ordering a new trial, determined the admission of the testimony of a police officer describing unrelated allegations of strangulation by other complainants deprived defendant of a fair trial:

… County Court erred in admitting in evidence testimony from a police officer who responded to the scene regarding his observations of other, unnamed complainants in prior, unspecified cases. The officer was permitted to testify that he had taken photographs “once or twice” of complainants who had “alleged strangulations,” and that he could not recall having observed bruises on those other complainants. The officer’s testimony was used by the People in order to explain that the lack of marks on the neck of the victim in the present case did not mean that defendant did not strangle her. Indeed, during closing argument the People invited the jury to “recall the testimony of [the officer], that he did not observe any signs of bruising on [the victim’s] neck. You’ll also recall that he has been to other strangulations and investigated those, and he didn’t find any injuries there either.” We conclude that the officer’s testimony regarding prior, unrelated cases is entirely irrelevant to the instant case, and that it was error to admit that “irrelevant and highly prejudicial testimony” … . People v Iqbal, 2025 NY Slip Op 01746, Fourth Dept 3-21-25

Practice Point: Here a police officer’s vague testimony about unrelated allegations of strangulation involving complainants other than the victim in this strangulation case deprived defendant of a fair trial.

 

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THE MAJORITY AFFIRMED DEFENDANT’S DRIVING-RELATED RECKLESS-ENDANGERMENT-FIRST-DEGREE CONVICTION STEMMING FROM HIS STRIKING SEVERAL CARS, CAUSING ONE TO FLIP, AND CRASHING INTO A HOUSE; TWO DISSENTERS ARGUED THE PROOF DID NOT SUPPORT THE “DEPRAVED INDIFFERENCE” ELEMENT OF THE OFFENSE (THIRD DEPT). ​

The Third Department affirmed defendant reckless endangerment first degree conviction over a two-justice dissent which argued the evidence did not support the “depraved indifference” element of the offense:

From the dissent:

As the majority details, on the morning of June 27, 2018, defendant was driving his vehicle in the Town of Colonie, Albany County when he collided with several vehicles — causing one to flip over — before hitting a curb and crashing into the foundation of a house. We acknowledge that the People were able to rely on the circumstantial evidence surrounding defendant’s conduct to establish that he acted with the requisite mens rea of depraved indifference to human life … . Nevertheless, in reviewing these particular circumstances, we believe there is insufficient evidence to show that he was aware of, appreciated and disregarded the risks caused by his behavior (see id.). It is uncontroverted that defendant was driving recklessly and that, in doing so, he caused significant property damage as well as various degrees of injury to the victims. However, throughout this ordeal, which lasted less than five minutes and spanned less than half a mile, defendant was not driving well in excess of the posted speed limit, and there is no evidence that he ever drove against oncoming traffic or failed to obey traffic lights … . Even viewing the particular circumstances here in the light most favorable to the People, we do not believe that this case presents one of the rare circumstances where “the mens rea of depraved indifference . . . [is] established by risky behavior alone” … . People v Bender, 2025 NY Slip Op 01678, Third Dept 3-20-25

Practice Point: Consult this decision for some insight into the proof necessary for the “depraved indifference” element of reckless endangerment first degree in context of reckless driving.​

 

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IN A FACT-SPECIFIC OPINION, THE COURT OF APPEALS, REVERSING THE APPELLATE DIVISION, DETERMINED THERE WAS SUBSTANTIAL EVIDENCE SUPPORTING THE UNIVERSITY’S RULING THAT PETITIONER-STUDENT VIOLATED THE CODE OF STUDENT CONDUCT BY ENGAGING IN UNWANTED SEXUAL ACTIVITY (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannatara, in a fact-specific analysis, determined the university’s ruling that petitioner, P.C., a university student, violated the Code of Student Responsibility by engaging in unwelcome sexual activity with another student, S.G., was supported by the evidence:

… [S]ubstantial evidence supports the determination that P.C. violated the Code of Student Responsibility by engaging in unwanted sexual activity with S.G. despite her physical resistance and loss of consciousness during separate encounters. Although some aspects of the sexual encounters may have been consensual, there is ample evidence that other aspects were not. S.G.’s unrebutted testimony was deemed credible and she provided consistent evidence, both in her written statement for the investigator and in her hearing testimony, that she tried unsuccessfully to physically remove P.C.’s hands from her neck during an encounter in the woods. Under the Code of Student Responsibility, her physical resistance is inconsistent with affirmative consent.

Similarly, with respect to the allegation that P.C. had sex with S.G. in the car without her affirmative consent, S.G. consistently maintained that she lost consciousness, woke up while P.C. was still having sex with her, and that P.C. then told her she had only been “out” for a moment. Under the Code, sexual activity must stop when a person is incapacitated by lack of consciousness or being asleep. Moreover, P.C.’s own text messages acknowledge the sexual contact and, to some degree, evince a consciousness of guilt.

The evidence adduced depicting unwelcome sexual conduct by P.C. constitutes substantial evidence supporting all three charges. In reaching the opposite conclusion, the Appellate Division majority improperly reweighed the evidence by relying on S.G.’s statements concerning consensual conduct that transpired earlier in the evening, to the exclusion of her testimony regarding the contact to which she did not consent, and disregarded the conclusion that P.C.’s text messages reflected a consciousness of guilt. Matter of P.C. v Stony Brook Univ., 2025 NY Slip Op 01566, CtApp 3-18-25

Practice Point: Consult this opinion for some insight into the evidence which is sufficient to support a university’s ruling that a student should be suspended for violating the Code of Student Responsibility by engaging in unwanted sexual activity.

 

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