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ABSENT A MOTION BY A PARTY, SUPREME COURT SHOULD NOT HAVE DISMISSED THE ACTION BASED UPON DEFECTIVE SERVICE (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s motion to vacate the order dismissing the action should have been granted. The court, sua sponte, dismissed the case because of defective service. However, a dismissal on this ground requires a motion by a party. The dissenters argued the order at issue is not appealable and would have dismissed the appeal:

… CPLR 306-b specifies that “[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” (emphasis added). In consideration of this express language, other Departments of the Appellate Division have recognized that a court cannot dismiss a complaint on its own initiative for lack of personal jurisdiction based upon the failure to effect proper service of process … . As the July 2023 order dismissed the underlying action for lack of personal jurisdiction sua sponte, the court erred in doing so absent a motion by one of the parties. On account of that error, the court abused its discretion in denying plaintiff’s instant request that it exercise its discretionary power to vacate that order in the interest of substantial justice … . Plaintiff’s motion seeking to vacate the July 2023 order dismissing the action should therefore be granted and the complaint reinstated. Briggs v Fresenius, 2026 NY Slip Op 01827, Third Dept 3-26-26

Practice Point: A judge cannot, sua sponte, dismiss an action because of defective service. A party must move to dismiss on that ground.

 

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PURSUANT TO THE MENTAL HYGIENE LAW, THE JUDGE DID NOT HAVE THE AUTHORITY TO INVALIDATE THE INCAPACITATED PERSON’S WILL IN THIS GUARDIANSHIP PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this guardianship proceeding pursuant to the Mental Hygiene Law did not have the authority to invalidate the incapacitated person’s will:

… [T]he court ,,, adjudged Vincent V. L. to be an incapacitated person within the meaning of Mental Hygiene Law article 81 and appointed an independent guardian for his person and property. At issue on this appeal … is whether the court properly directed, in the context of this Mental Hygiene Law article 81 proceeding, that the last will and testament of Vincent V. L. … , was void ab initio.

Mental Hygiene Law § 81.29(d) expressly provides, in relevant part, that “[t]he court shall not . . . invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person” in the context of a Mental Hygiene Law article 81 proceeding. The Supreme Court thus did not have the authority to invalidate Vincent V. L.’s last will and testament in the context of this Mental Hygiene Law article 81 proceeding. Matter of Vincent V.L. (Matthew L.–Tomasine F.), 2026 NY Slip Op 01789, Second Dept 3-25-26

Practice Point: The Mental Hygiene Law prohibits the invalidation of an incapacitated person’s will in a guardianship proceeding.

 

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THE JUDGE DID NOT MAKE EVEN A “MINIMAL INQUIRY” WHEN DEFENDANT STATED HE WANTED ANOTHER ATTORNEY; DEFENDANT DID NOT ABANDON THE ISSUE BY NOT RAISING IT AGAIN WHEN HE PLED GUILTY; PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, in a full-fledged opinion by Judge Rodriguez, over a dissenting opinion, determined defendant was not afforded an adequate opportunity to explain his request for a new attorney. Defendant attempted to raise the issue at an early court appearance, but the judge made no inquiry. Subsequently, without raising the issue again, defendant pled guilty while represented by the same attorney:

“Where a defendant makes a seemingly serious request for reassignment of counsel, the court must make at least a ‘minimal inquiry’ as to ‘the nature of the disagreement or its potential for resolution’ ” … . Generally, to trigger the “minimal inquiry” requirement, the defendant must provide specific factual allegations … .

However, the “minimal inquiry” requirement presumes a fair opportunity to be heard. The law, in other words, does not permit the court to satisfy its obligations in this area by refusing the defendant an opportunity to record a potentially serious request. Thus, if the court denies the defendant’s “request for substitution of counsel without conducting any inquiry whatsoever, and without permitting defendant to explain, either orally or in writing, why such an inquiry might be necessary,” the defendant’s conviction should be vacated … .

Here, the court summarily denied defendant’s application without giving him a fair opportunity to be heard. Specifically, when defendant first asked to speak, the court ignored him altogether. When defendant made a second attempt, the court refused to permit him to address the issue and instead instructed him to “[t]alk to [his] lawyer.” As the People acknowledge, defendant had to interrupt the proceeding on his third attempt to communicate even his most elemental “need [for] a new attorney.” People v Dinkins, 2026 NY Slip Op 01742, First Dept 3-24-26

Practice Point: Consult this opinion for insight into the inquiry which must be made by a judge when a defendant requests a new attorney.

 

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DEFENDANT, BY FIRING HIS ATTORNEY AND REFUSING TO BE PRESENT AT TRIAL, WAIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND HIS RIGHT TO BE PRESENT AT HIS TRIAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a concurrence and an extensive dissent, determined defendant, by firing his attorney and refusing to be present during the trial, waived his right to effective assistance of counsel and his right to be present at his trial. The court further determined that the consecutive sentences for two counts of criminal possession of a weapon were improper because both offenses arose from the same act of possession:

“Waiver is a knowing, intelligent, and voluntary relinquishment of a known right” … . Like other fundamental rights, a defendant’s right to effective assistance of counsel may be waived … . We have explained that “[a]n accused awaiting trial . . . has only two choices regarding legal representation—proceed with counsel or waive the protection of the Sixth Amendment and proceed pro se” … . Accordingly, when a defendant “refuse[s] self-representation and restrict[s] the participation of counsel . . . [they] hav[e] voluntarily waived the right to the effective assistance of counsel” … .

Whether the waiver of a fundamental right is valid “depend[s], in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused” … . “In many instances, the requisite affirmative showing that . . . [a] right[ ] ha[s] been knowingly, voluntarily, and intelligently waived will include a direct colloquy between the court and the defendant” … . We have also long held that a defendant may waive certain fundamental rights by their conduct, most notably in the context of the right to be present … . In determining whether such a waiver occurred, relevant circumstances include the warnings provided by the trial court, the defendant’s actions in response, and whether, in light of the defendant’s conduct, the trial court could practicably have administered additional warnings or attempted to secure an oral waiver. * * *

In light of the trial court’s many warnings to defendant and defendant’s obstructive behavior in response, there is record support for the conclusion that, by his conduct, defendant waived the right to effective assistance of counsel. A trial court must be cautious not to conflate waiver of the right to be present at trial with waiver of the right to effective assistance of counsel. These rights are separate, and a trial court has distinct duties to ensure the validity of a defendant’s waiver of each. However, in certain circumstances, as in this case, the same conduct may amount to a waiver of both rights. People v Lewis, 2026 NY Slip Op 01588, CtApp 3-19-26

Practice Point: A defendant by his behavior (here firing his attorney and walking out of the trial), in the face of sufficient warnings by the judge, may waive both the right to effective assistance of counsel and the right to be present at the trial.

 

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TWO PEOPLE WERE SHOT IN A DRIVE-BY SHOOTING; DEFENDANT, IN THE PLEA ALLOCUTIONS, DID NOT ADMIT TO FIRING SEPARATELY AT EACH VICTIM; THEREFORE THE PEOPLE DID NOT MEET THEIR BURDEN TO SHOW THE COMMISSION OF TWO DISTINCT CRIMES; CONSECUTIVE SENTENCES COULD NOT BE IMPOSED (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined the prosecutor did not demonstrate that the two victims of this drive-by shooting were struck by different bullets fired separately at each, causing separate injuries to each. Therefore the judge could not impose consecutive sentences. The court noted that this issue need be preserved for appeal:​

… [T]he prosecutor should have been aware at the time of the plea, based on our unambiguous caselaw, that they had the burden of ensuring defendant allocuted to sufficient facts to establish that he separately shot at the two victims or that the victims were injured by separate bullets, in order for consecutive sentencing to be legally authorized. But because the prosecutor failed to satisfy their burden and place on the record the alleged “separate and distinct” acts underlying the two crimes … , the trial court had no legal authority to impose consecutive sentences in this case. People v Sabb, 2026 NY Slip Op 01590, CtApp 3-19-26

Practice Point: Here the defendant was never asked during the plea allocutions whether he fired two shots separately injuring the two victims. Therefore the People did not meet their burden to prove the commission of two separate crimes and consecutive sentences could not be imposed.

 

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THE ACT OF SIMPLE POSSESSSION OF A WEAPON WAS COMPLETE BEFORE THE WEAPON WAS USED TO SHOOT THE VICTIM DURING A ROBBERY; THEREFORE, DESPITE THE OVERLAP OF THE ELEMENTS OF SIMPLE POSSESSION OF A WEAPON AND THE ELEMENTS OF FELONY MURDER AND ROBBERY, CONSECUTIVE SENTENCES WERE PROPERLY IMPOSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirming the Appellate Division, determined the sentence for simple possession of a weapon was properly imposed to run consecutively to the concurrent sentences for felony murder and robbery:

Penal Law § 70.25 (2) governs consecutive sentencing, providing that “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently.” Otherwise, the decision to impose consecutive sentences is a matter of discretion; the statute provides that “when multiple sentences of imprisonment are imposed on a person at the same time . . . the sentence or sentences imposed by the court shall run either concurrently or consecutively . . . in such manner as the court directs at the time of sentence” … .

To determine whether consecutive sentences are permitted, a sentencing court must first examine the statutory elements of the crimes and determine whether those elements overlap “under either prong” of Penal Law § 70.25 (2) and, if they do, “the People may yet establish the legality of consecutive sentencing by showing that the ‘acts or omissions’ committed by defendant were separate and distinct acts” … . That is, where sufficient evidence of separate and distinct acts is presented by the People, “consecutive sentences are possible regardless of whether the statutory elements of the offenses overlap” … .

… [T]he convictions at issue here have overlapping material elements. * * * Whatever the overlap, however, we conclude that the People met their burden of establishing that the defendant’s acts here were separate and distinct and therefore the consecutive sentences imposed were legal.

The People demonstrated that defendant’s possession of the gun in violation of Penal Law § 265.03 (3) was an act distinct from the commission of the robbery. Defendant obtained the gun, at minimum, more than one hour before the robbery, carried it across approximately 15 city blocks, and placed it under a bed in a co-conspirator’s home for “a little while” before eventually retrieving the gun and walking over to the intended victim’s building. Evidence that defendant obtained the gun and then used it to commit the substantive crime provided a sufficient basis for the sentencing judge to impose consecutive sentences. … ” ‘[t]he evidence clearly established that defendant was carrying the weapon at the time he encountered and shot the victim,’ ” and therefore ” ‘the act of possession was complete before the shooting, and consecutive sentences were authorized by’ ” the statute … . People v Billups, 2026 NY Slip Op 01589, CtApp 3-19-26

Practice Point: Consult this opinion for insight into when a judge may impose consecutive sentences despite an overlap of the elements of the crimes.

 

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HERE A “CERTIFICATE OF DELINQUENCY” WAS NEVER FILED FOR ANY VIOLATION OF PROBATION BY THE DEFENDANT AND THE PERIOD OF PROBATION EXPIRED WHILE DEFENDANT WAS STILL UNDER THE SUPERVISION OF THE DRUG TREATMENT COURT; WHEN DEFENDANT VIOLATED THE TERMS OF PROBATION AGAIN, PROBATION WAS REVOKED AND DEFENDANT WAS SENTENCED TO INCARCERATION; BECAUSE THE REVOCATION AND SENTENCE TOOK PLACE AFTER THE PERIOD OF PROBATION EXPIRED, THE SENTENCING COURT HAD BEEN STRIPPED OF JURISDICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined that, because no “declaration of delinquency” had ever been filed, defendant’s [Mr. Curry’s] period of probation was never tolled. Therefore the court did not have jurisdiction to revoke his probation and sentence him to incarceration after his probationary period expired:

From 2019 through 2021, Mr. Curry participated in the drug treatment program with mixed results. The DTC [drug treatment court] made efforts to support a positive outcome, permitting Mr. Curry’s continued release after positive drug screens and ensuring he received outpatient treatment. July 5, 2021—the date at which Mr. Curry’s probation was set to expire—passed while Mr. Curry continued to participate in DTC. On December 14, 2021, due to another positive drug screen and missed court dates, the DTC revoked Mr. Curry’s probation and sentenced him to two years of incarceration and three years of post-release supervision. People v Curry, 2026 NY Slip Op 01448, CtApp 3-17-26

Practice Point: If a defendant violates probation but no certificate of delinquency is filed, the probationary period continues to run is not tolled. Here, despite probation violations by the defendant, no certificate of delinquency was ever filed. The court therefore did not have jurisdiction to revoke defendant’s probation and sentence him to incarceration after the expiration of his probationary period.​

 

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HERE THE RESITITUTION FOR THE VICTIM’S OUT-OF-POCKET MEDICAL EXPENSES WAS VACATED BECAUSE THE JUDGE DID NOT MAKE A RECORD SUPPORTING THE AMOUNT AWARDED (THIRD DEPT).

The Third Department, vacating the restitution for the victim’s out-of-pocket medical expenses, determined the judge failed to make a record of those expenses as required by Penal Law section 60.27:

Although the restitution amount did not exceed the agreed-upon limit, the record is devoid of any hearing, colloquy or judicial determination confirming the actual out-of-pocket medical expenses incurred by the victim (see Penal Law § 60.27; CPL 400.30). Absent record evidence that the restitution imposed satisfied the requirements of Penal Law § 60.27, the order of restitution must be vacated and the matter remitted to County Court for reconsideration in accordance therewith … People v Jimenez- Rivera, 2026 NY Slip Op 01421, Third Dept 3-12-26

Practice Point: Penal Law 60.27 requires record evidence of the amount of restitution for out-of-pocket medical expenses.

 

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ALTHOUGH THE JUDGE INFORMED DEFENDANT HE COULD BE SUBJECT TO AN ENHANCED SENTENCE IF HE DIDN’T APPEAR FOR THE PRESENTENCE INVESTIGATION INTERVIEW OR GOT INTO TROUBLE BEFORE SENTENCING, THE JUDGE DID NOT SPECIFICALLY INFORM DEFENDANT HE WOULD BE SUBJECT TO AN ENHANCED SENTENCE IF HE DID NOT APPEAR FOR SENTENCING; SENTENCE VACATED (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence and remitting the matter, determined defendant was not specifically informed that his failure to show up for sentencing could result in an enhanced sentence. Therefore the enhanced sentence was vacated:

In satisfaction of the indictment and other pending charges, defendant agreed to plead guilty to one count of falsely reporting an incident in the second degree and waive his right to appeal. He entered that plea upon the understanding that he would be sentenced, as a second felony offender, to two years in prison, to be followed by five years of postrelease supervision. County Court provided an oral Parker admonishment at the conclusion of the plea proceeding and warned defendant that, if he failed to appear for a scheduled presentence investigation interview or got “into further trouble, some new legal difficulties” before sentencing, it would not be bound by its sentencing commitment and could sentence him to up to four years in prison. * * *

“A sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed” … . As the People concede, County Court failed to “specifically inform [defendant] as part of the Parker admonishment that a consequence of failing to appear for sentencing was the imposition of a greater sentence” … . County Court therefore erred in imposing an enhanced sentence on that ground without first giving defendant an opportunity to withdraw his plea … . People v Gordon, 2026 NY Slip Op 01251, Third Dept 3-5-26

Practice Point: In order to impose a valid enhanced sentence if defendant fails to show up for sentencing, the judge must have specifically informed defendant of that possibility.. Here defendant was told he may receive an enhanced sentence if he didn’t attend the presentence investigation interview, which was not sufficient.

 

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NONE OF DEFENDANT’S CONVICTIONS STOOD UP TO APPELLATE SCRUTINY; THE GRAND LARCENY AND CRIMINAL IMPERSONATION CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; THE COUNTS CHARGING SCHEME TO DEFRAUD AND APPEARING AS AN ATTORNEY WITHOUT BEING ADMITTED WERE DISMISSED AS DUPLICITOUS (SECOND DEPT).

The Second Department reversed the grand larceny and criminal impersonation counts, with the People’s consent, under a weight-of-the-evidence analysis. The proof demonstrated the grand larceny counts failed because the “victims” voluntarily gave defendant the money. The criminal impersonation counts failed because the defendant did not impersonate a “real person.” The scheme to defraud and “appearing as an attorney without being admitted” counts were dismissed as duplicitous:

… [T]he counts of scheme to defraud in the first degree and practicing or appearing as an attorney without being admitted and registered were duplicitous. “A count in an indictment is void as duplicitous when it charges more than one offense” … . “Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented to the grand jury or at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … . Here, neither the verdict sheet nor the jury charge explained how the testimony and evidence adduced at trial applied to the three counts of scheme to defraud in the first degree or the three counts of practicing or appearing as an attorney without being admitted and registered, including which counts pertained to which of the complainants. Under the circumstances, the challenged counts were duplicitous because it is impossible to determine the particular acts upon which the jury reached its verdict with respect to each of the counts … . People v Rafikian, 2026 NY Slip Op 01232, Second Dept 3-4-26

Practice Point: Consult this decision for an example of dismissal of indictment counts as duplicitous. It was not possible to determine which allegation in the counts was the basis of the the jury’s decision to convict.

 

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