You are here: / Evidence
, , ,

THE YOUTH PART OF COUNTY COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT “EXTRAORDINARY CIRCUMSTANCES” WARRANTED GRANTING THE PEOPLE’S MOTION TO PREVENT REMOVAL OF THE 17-YEAR-OLD’S PROSECUTION TO FAMILY COURT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, over a three-judge dissenting opinion, determined the youth part of County Court did not abuse its discretion in granting the People’s motion to prevent removal of the 17-year-old defendant’s prosecution to Family Court. Under the State’s Raise the Age legislation, the People’s motion to prevent removal to Family Court can be granted in “extraordinary circumstances:”

Although [county court] found that defendant and his accomplices entered the victim’s home with the intent to commit a robbery and, during the course of the robbery, struck the victim several times in the face with a shotgun, the court noted further that the violent nature of the alleged crimes was not by itself a basis for preventing removal on the ground of extraordinary circumstances. Rather, the court opined that it was also required to consider whether defendant was amenable to Family Court services. In that regard, the court found that defendant had several mental health diagnoses but, at the same time, had been receiving services for five years. Based on those considerations, the court concluded that the People had demonstrated extraordinary circumstances sufficient for the case to remain in the youth part.

The Appellate Division affirmed on the basis that defendant participated in a violent home invasion involving weapons and injuries to the victim, and that, despite the Family Court services provided to him over the five years of his involvement with the criminal justice system, he “made no appreciable positive response and continues to engage in escalating criminal behavior” … . Thus, the Appellate Division concluded that, “under the totality of the circumstances, and taking into account the mitigating factors and the substantial aggravating factors, the court did not abuse its discretion in determining that extraordinary circumstances exist warranting that this case remain in the youth part” … . People v Guerrero, 2026 NY Slip Op 00826, CtApp 2-17-26

Practice Point: Consult this opinion for insight into when “extraordinary circumstances” will justify granting the People’s motion to prevent removal of a 17-year-old’s prosecution from the youth part of County Court to Family Court.

 

,

THE FINDING THAT MOTHER HAD ABUSED THE CHILDREN WAS BASED ON VIDEO EVIDENCE PURPORTING TO SHOW MOTHER’S EX-BOYFRIEND ABUSING ONE OF THE CHILDREN; THE COURT OF APPEALS REVERSED, FINDING THAT THE VIDEO EVIDENCE WAS NOT AUTHENTICATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the finding that mother had abused her daughter and son based entirely on videos purportedly showing mother’s former boyfriend abusing one of the children required reversal because the foundation evidence offered for the videos was insufficient: There was a three-judge dissenting opinion, and a separate two-judge dissenting opinion: The majority opinion is too detailed to fairly summarize here. The majority concluded the videos, which were procured by an FBI agent from a suspected child pornographer who had, in turn, procured the videos from a hacked security camera, were not authenticated:

The videos were not discovered in the family home or on any camera or computer belonging to D.K. [the ex-boyfriend] or M.H [mother]. Instead, in the course of an FBI investigation into persons suspected of trading child pornography, the agents executed a search warrant on B.W., who lived in Syracuse. In the course of questioning by FBI Agent Martin Baranski, B.W., though not under oath or in any sworn statement, said (according to Agent Baranski’s recollection) that he had been “hack[ing] into security web cameras for the past few years.” B.W. further stated that in 2019 he had “hacked into a security camera” which showed what he thought was an adult male sexually abusing the man’s 15-year-old stepdaughter. B.W. claimed that he “watched a lot of the security camera footage of this house” and saw “a lot” of interactions between the individuals depicted in the videos. He told Agent Baranski he had saved some videos from that camera in a particular location on his computer, along with a screenshot that contained details about the security camera login information, including a possible name, email and IP address.

Searching a digital copy of B.W.’s computer, Agent Baranski found three videos that appeared to show an adult male sexually abusing a young girl; the videos contained timestamps indicating they were recorded around the summer of 2019. Based on information from the screenshot on the suspect’s computer and other investigative work, Agent Baranski was able to identify D.K.’s name and workplace; he then relayed that information to New York law enforcement. * * *

The rules of evidence apply in Family Court just as much as they apply in any other court. The proponent of evidence bears the burden of demonstrating its authenticity … . … The failure to authenticate evidence sufficiently does not mean the evidence was false, but only that it was not properly authenticated according to the rules of evidence. … We do not mean to suggest that the videos here could not have been authenticated, or that child victims must testify, or that B.W., Agent Baranski, or some other person could not have offered adequate authentication testimony. But the evidence of authentication proffered here was legally insufficient. What that means for the next case is that in Family Court, as in all our courts, evidence must be properly authenticated. Matter of M.S. (M.H.), 2026 NY Slip Op 00825, CtApp 2-17-26

Practice Point: The rules of evidence apply equally in Family Court. Here the finding that mother abused the children was based entirely on video evidence. Because the video evidence was not authenticated, the abuse finding was reversed.

 

, , ,

SORA RISK-LEVEL POINTS SHOULD NOT HAVE BEEN ASSESSED BASED UPON A JUVENILE DELINQUENCY ADJUDICATION; THE EVIDENCE DID NOT SUPPORT AN AUTOMATIC OVERRIDE FOR AN “ABNORMALITY THAT DECREASES THE ABILITY TO CONTROL IMPULSIVE SEXUAL BEHAVIOR” (FOURTH DEPT).

The Fourth Department, reducing defendant’s risk level assessment from three to two determined (1) the court should not have based a 10-point assessment on a juvenile delinquency adjudication and (2) the evidence did not demonstrate defendant suffered from an abnormality that decreased his ability to control impulsive sexual behavior:

Defendant was assessed 10 points under risk factor 8 for his age at the time of his first sex crime based on a juvenile delinquency adjudication when he was 15 years old, and the court rejected defendant’s challenge to the assessment of points under that risk factor. We have repeatedly held, however, that a juvenile delinquency adjudication may not be considered a crime for purposes of assessing points in a SORA determination … . * * *

Defendant also contends that the court erred when it,… adjudicated him a level three risk through application of an automatic override based on “a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior” … . We agree. It is well settled that “[t]he People bear the burden of proving the applicability of a particular override by clear and convincing evidence” … . … While the record supports the conclusion that defendant suffered from mental illness and that he exhibited impulsive behavior, there was no clinical assessment in the record establishing that his mental illness decreased his ability to control his behavior. Of note, neither the People nor the Board of Examiners of Sex Offenders requested that the court apply the automatic override here and, further, defendant never had the opportunity to oppose use of the override before the court decided to apply it. People v Singleton, 2026 NY Slip Op 00756, Fourth Dept 2-11-26

Practice Point: A court cannot assess SORA risk-level points based on a juvenile delinquency adjudication.

Practice Point: Consult this decision for insight into the evidence required to apply an automatic override in a SORA risk-assessment proceeding based on “a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior” … .

 

, ,

GRANDMOTHER DEMONSTRATED “EXTRAORDINARY CIRCUMSTANCES” SUCH THAT SHE HAD STANDING TO SEEK CUSTODY OF THE CHILDREN (FOURTH DEPT.).

The Fourth Department, reversing Family Court and remitting the matter, determined that grandmother had demonstrated “extraordinary circumstances” and she therefore had standing to bring a custody petition:

The evidence here established that, in 2018, the father was arrested and incarcerated until 2022. During that time, the children resided with the mother in the grandmother’s home until October 2021, when the grandmother moved out. The father never saw the children while he was incarcerated, rarely spoke with them, and never sent them cards, letters, or gifts. When the father was released from incarceration, the mother asked him to take custody of the children, which he did starting in July or August 2022; the grandmother visited with the children on the weekends. The mother died less than a year later, and the children lived with the grandmother during the summer of 2023. In September 2023, the parties filed petitions seeking custody of the children, and the court granted the grandmother temporary custody of the children, with the father having visitation. From that time until the conclusion of the hearing in July 2024, the father did not visit with the children and rarely communicated with them.

We conclude that the cumulative effect of the father’s extended incarceration, his failure to maintain contact with the children during that time, the children’s resulting bond with the grandmother, and the father’s failure to maintain contact with the children during the pendency of the hearing, is sufficient to establish extraordinary circumstances … . Matter of Craig v Thomas, 2026 NY Slip Op 00751, Fourth Dept 2-11-26

Practice Point: Consult this decision for insight into the nature of “extraordinary circumstances” which will confer standing upon a grandparent to seek custody of the grandchildren.

 

, , ,

THE JUDGE IN THIS AGGRAVATED CRUELTY TO ANIMALS CASE SHOULD NOT HAVE REDUCED THE COUNTS IN THE INDICTMENT ABSENT A WRITTEN MOTION OR A WAIVER BY THE PEOPLE; THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE INDICTMENT; THE JUDGE SHOULD NOT HAVE DETERMINED DEFENDANT COULD NOT HAVE FORMED THE REQUISITE INTENT DUE TO MENTAL DISEASE OR DEFECT; ONLY A JURY CAN MAKE THAT DETERMINATION (FOURTH DEPT).

The Fourth Department, reversing County Court in this aggravated cruelty to animals case, determined (1) the judge should not have reduced the counts in the indictment absent a written motion and (2) the evidence presented to the grand jury was legally sufficient to support the indictment. Defendant put three kittens in a knotted pillowcase left them on a balcony during a snow storm. They were discovered under several feet of snow. Two of the kittens died. The judge apparently concluded the defendant, due to mental disease of defect, was not capable of forming the intent to commit the offense. The Fourth Department noted that only a jury can make that determination:

… County Court erred in reducing the counts without a written motion requesting such relief. “A motion to dismiss an indictment pursuant to [CPL] 210.20 must be made in writing and upon reasonable notice to the people” (CPL 210.45 [1] …). “The procedural requirements of CPL 210.45 must be adhered to even when consideration of the dismissal is upon the court’s own motion” … . Unless those requirements have been waived by the People, “[t]he failure . . . to comply with the statutory mandates requires a reversal” … . * * *

We conclude that the evidence before the grand jury was legally sufficient to establish that defendant, with no justifiable purpose, intentionally killed the kittens and that defendant did so with aggravated cruelty inasmuch as defendant killed the kittens in a manner that inflicted extreme pain on the dying animals … or did so in a manner likely to prolong the animals’ suffering … .

To the extent that the court reduced the counts on its own finding that defendant could not form the requisite intent, that was improper weighing of the evidence inasmuch as “consideration of a potential defense of mental disease or defect should rest exclusively with the petit jury” … . People v Taylor, 2026 NY Slip Op 00738, Fourth Dept 2-11-25

Practice Point: A judge cannot on the court’s own motion reduce counts of an indictment. There must be a written motion absent a waiver by the People.

Practice Point: A judge cannot, sua sponte, find that defendant could not form the required intent to commit the charged offense due to mental disease or defect. Only a jury can make that determination.

 

, ,

DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO CHALLENGE THE INITIAL POLICE CONTACT WITH THE DEFENDANT AS UNJUSTIFIED; THE MATTER WAS REMITTED FOR A SUPPRESSION HEARING (FOURTH DEPT).

The Fourth Department, ordering a suppression hearing, determined defense counsel was ineffective in failing to challenge whether the police were justified in initiating the encounter with the defendant based upon a vague and ambiguous 911 call:

We conclude that the record establishes that defense counsel could have presented a colorable argument that the police officer’s actions were either not justified at the inception of the encounter or otherwise not reasonably related in scope to the circumstances presented (see De Bour, 40 NY2d at 215). Here, the officer’s encounter with defendant was based on a 911 call from a security guard at a nearby restaurant who said that he observed a man who had what “looks like a black phone, but then again . . . looks like a gun.” The security guard provided a description of the individual, and the guard said that he could not be sure, but that he thought the man might have been part of a dispute that had taken place at the restaurant earlier in the day. Notably, County Court held a Huntley hearing at which the arresting officer testified, but the testimony of the officer as well as his body cam footage, which was admitted at the hearing, presented a ” ‘close [question] under [the] complex De Bour jurisprudence’ ” regarding the legality of the police encounter … . People v Wyatt, 2026 NY Slip Op 00720, Fourth Dept 2-11-26

Practice Point: Defense counsel was deemed ineffective for failing to challenge the initial encounter between the defendant and the police. The remedy was remittal for a suppression hearing.​

 

, , , ,

THE FIRST DEPARTMENT RULED THAT PLAINTIFF-TENANTS DID NOT DEMONSTRATE, AS A MATTER OF LAW, THAT DEFENDANTS ENGAGED IN A FRAUDULENT SCHEME TO DEREGULATE APARTMENTS WHILE RECEIVING J51 TAX BENEFITS; THE COURT OF APPEALS REVERSED (CT APP).

The First Department, in a full-fledged opinion by Justice Kennedy, over a comprehensive, two-justice dissenting opinion, determined plaintiff-tenants did not demonstrate, as a matter of law, a fraudulent scheme on the part of the defendants re: deregulation of apartments while receiving J51 tax benefits. The Court of Appeal reversed and remitted:

From the First Department decision:

The issues presented on this appeal are (1) what is the appropriate base date rent for calculating damages and (2) whether the record before us sets forth evidence of a fraudulent scheme to deregulate the subject apartments to permit use of the default formula pursuant to Rent Stabilization Code (RSC) (9 NYCRR) § 2526.1(g). * * *

… [W]e conclude that the record before us did not establish evidence of a fraudulent scheme to deregulate the subject apartments as a matter of law, and that it was improper to utilize the default formula to calculate damages … . Aras v B-U Realty Corp., 2023 NY Slip Op 04917, First Dept 10-3-23

Reversed by the Court of Appeals: Aras v B-U Realty Corp., 2026 NY Slip Op 00637. CtApp 2-11-26

 

,

PLAINTIFF WAS HIT BY A FALLING CHISEL WHILE SITTING UNDER A SIDEWALK BRIDGE AT THE WORKSITE TAKING A BREAK; THE CHISEL SHOULD HAVE BEEN SECURED AND THE SCAFFOLDING ABOVE PLAINTIFF WAS INADEQUATE TO PROTECT HIM FROM A FALLING OBJECT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this falling-object case was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was sitting underneath a sidewalk bridge on the jobsite, taking a break, when he was struck by a chisel. The chisel should have been secured and the scaffolding above plaintiff had gaps and therefore failed to provide adequate protection. Plaintiff did not have to prove where the chisel came from:

… “[I]njuries sustained while a worker was on site, although . . . on a break, come within the protections of Labor Law § 240(1)” … .

Plaintiff established that the chisel “required securing for the purposes of the undertaking” and that the scaffolding “proved inadequate” to protect him … . It is irrelevant that plaintiff did not know where the chisel fell from, or what caused it to fall, or hear anything fall, as “plaintiff is not required to show exactly how the [object] fell” … . Any alleged inconsistency concerning the location of the accident is immaterial … . Similarly, it does not matter where the chisel struck plaintiff’s body, as it is undisputed that it struck him. … [P]laintiff alleges without contradiction that the scaffolding was defective … , including the existence of gaps between the scaffolding planks. Contreras v City of New York, 2026 NY Slip Op 00612, First Dept 2-10-26

Practice Point: In a Labor Law 240(1) falling-object case, a plaintiff need not prove where the object came from.

 

, , ,

PLAINTIFF ALLEGED SHE WAS COVERED AS AN ADDITIONAL INSURED UNDER THE POLICY AND ATTACHED A CERTIFICATE OF INSURANCE TO HER COMPLAINT; A CERTIFICATE OF INSURANCE IS NOT SUFFICIENT PROOF OF THE EXISTENCE OF AN INSURANCE CONTRACT; PLAINTIFF’S COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint alleging plaintiff was an additional insured based upon the certificate of insurance should have been dismissed. A certificate of insurance does not prove the existence of an insurance contract:

Only those named as an insured or additional insured on an insurance policy are entitled to coverage … . As the party claiming coverage, plaintiff bears the burden of showing that the policy covers her … .

Supreme Court should have granted [the insurer’s] motion to dismiss the complaint because plaintiff failed to plead facts showing that she was covered under the policy. The certificate of liability insurance is insufficient to prove that plaintiff was an additional insured because “[a] certificate of insurance is only evidence of a carrier’s intent to provide coverage but is not a contract to insure the designated party nor is it conclusive proof, standing alone, that such a contract exists” … . Furthermore, the certificate contains a disclaimer stating that it was “issued as a matter of information only and confers no rights upon the certificate holder” … . Itzhak v Briarwood Ins. Servs. Inc., 2026 NY Slip Op 00616, First Dept 2-10-26

Practice Point: A certificate of insurance is not proof of the existence of an underlying insurance contract. Here plaintiff relied solely on a certificate of insurance to allege she was covered under the policy as an additional insured. That was not enough to state a cause of action.

 

, ,

DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT A PREHEARING DENIAL OF AN APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) IS APPEALABLE; HERE DEFENDANT DID NOT DEMONSTRATE A SUFFICIENT NEXUS BETWEEN THE ABUSE HE SUFFERED WHILE LIVING WITH HIS FAMILY AND THE STABBING OF A STRANGER AFTER HE HAD LEFT HOME (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined (1) (disagreeing with the Third Department) defendant has the right to appeal from a prehearing dismissal of an application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA), and (2) the dismissal of defendant’s application was appropriate because defendant did not meet his evidentiary burden. Defendant stabbed and killed a stranger during an argument when he was 20 years old. He pled guilty to manslaughter. He applied for resentencing under the DVSJA based upon alleged abuse by family members. The application was denied, in part, because the abuse was not alleged to have been ongoing at the time of the offense:

… [T]he Third Department dismissed an appeal from a prehearing order denying a DVSJA resentencing application. The Third Department reasoned that “in enacting the DVSJA, the Legislature expressly authorized appeals as of right to an intermediate appellate court from orders denying resentencing or granting resentencing and imposing a new sentence,” but provided no such express statutory right to appeal “from an order dismissing an application for resentencing prior to a hearing” … . However, … CPL 440.47(3) specifically provides that an appeal may be taken as of right from “an order denying resentencing;” there is no language limiting that appellate right only to orders issued after a hearing is held.

… [T]he First and Second Departments have repeatedly reviewed orders denying a DVSJA resentencing application without a hearing due to a defendant’s failure to satisfy CPL 440.47(2)’s evidentiary requirements … . * * *

Cognizant of the horrific abuse that defendant suffered throughout his life, we nonetheless note that defendant had by his own admission left his adoptive parents’ home almost three years before the underlying crime.  People v Croney, 2026 NY Slip Op 00630, First Dept 2-10-26

Practice Point: In the Third Department the prehearing denial of an application for resentencing under the DVSJA is not appealable. In the First and Second Departments, a prehearing denial is appealable.

Practice Point: Here there was no question defendant had suffered horrific abuse when living with his family. But the offense was committed after defendant had left home. The DVSJA was deemed not to apply under the facts.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy