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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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DEFENSE COUNSEL WAS UNAVOIDABLY DELAYED IN GETTING TO COURT AND SO INFORMED THE JUDGE; IN DEFENSE COUNSEL’S ABSENCE A JUROR REQUESTED TO BE DISCHARGED BECAUSE OF THE SUDDEN DEATH OF HER FRIEND’S SON; THE DISCHARGE OF THE JUROR WITHOUT DEFENSE COUNSEL’S CONSENT REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defense motion for a mistrial should have been granted. Defense counsel, because of a child-care issue, informed the court she could not be there at 9 am but would arrive at court later in the morning. While defense counsel was absent, a juror requested to be discharged because of the sudden death of a family friend’s son. The judge discharged the juror. When defense counsel arrived she objected to the discharge of the juror without her consent and moved for a mistrial:

It is undisputed that the Supreme Court failed to adhere to the requirements of CPL 270.35. As a matter of procedure, the court, at a minimum, should have informed all parties of the substance of the inquiry and provided each side with an opportunity to be heard before making its determination to discharge the sworn juror. The court both conducted the inquiry and discharged the juror in the presence of the People and in the absence of defense counsel.

Although defense counsel was apprised with the actual specific contents of the jury note upon her arrival … , the Supreme Court’s procedural errors here were inherently prejudicial, as they deprived the defendant of an opportunity to be heard before giving meaningful notice of the contents of the note, conducting the inquiry, and discharging the juror as incapacitated … . People v Dean, 2026 NY Slip Op 01218, Second Dept 3-4-26

Practice Point: Here the discharge of a juror in defense counsel’s absence warranted a mistrial.

 

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THE TRANSGENDER PETITIONER’S REQUEST TO SEAL THE RECORDS OF THE NAME-CHANGE PROCEEDINGS SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court’s denial of petitioner’s request to seal the court records, determined petitioner’s transgender status justified the sealing of the records of the name-change proceedings:

… “[W]hether to grant or deny a sealing request under Civil Rights Law § 64-a depends solely upon the potential for harm to the applicant arising from public access to a court record of the applicant’s name change proceeding” and “a court abuses its discretion by relying upon real or theoretical ‘public interest concerns’ to deny a Civil Rights Law § 64-a sealing request” … . Said directly, “[t]o decline to seal the record despite the applicant’s showing of jeopardy is to place the applicant at risk of the very harms the statute is meant to guard against” … .

Petitioner in this case affirmed his transgender status and indicated that he was seeking to change his name to one that reflects his male gender identity in conformance with the name he uses in his personal and professional life. Petitioner also expressed fear that exposure to the records from this proceeding would effectively expose his transgender status and expose him to increased risk for hate crimes, harassment and other discrimination. Those circumstances warrant entitlement to have the record of his name change proceeding sealed pursuant to Civil Rights Law § 64-a … . Matter of Abigail X., 2026 NY Slip Op 01104, Third Dept 2-26-26

 

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EVEN WHERE EVIDENCE OF AN UNCHARGED CRIME IS “INEXTRICABLY INTERTWINED” WITH THE NARRATIVE OF CHARGED CRIME, IT MAY BE INADMISSIBLE BECAUSE ITS PREJUDICIAL EFFECT OUTWEIGHS ITS PROBATIVE VALUE; HERE THE COMPLAINANT’S TESTIMONY ABOUT A PRIOR UNCHARGED SEX ACT SHOULD NOT HAVE BEEN ADMITTED (FIRST DEPT).

The Frist Department, reversing the conviction in this sexual abuse prosecution, determined the evidence of a prior sex act with the complainant was much more prejudicial than probative. The evidence was therefore inadmissible:

Prior to the commencement of jury selection for the second trial, the People made a Molineux application to allow the complainant to testify about an alleged prior oral sexual encounter with defendant. The People argued, inter alia, that this evidence was “inextricably intertwined” with the complainant’s testimony as to the charges of sexual abuse, provided relevant background, and put the complainant’s testimony “into a believable context.” Supreme Court granted the People’s motion. The court concluded that the proposed testimony was “inextricably woven [in]to the narrative.” …

Supreme Court erred in granting the People’s Molineux application. Even if the People established some non-propensity basis for introducing this evidence, “the prejudicial nature of that evidence far outweighed any probative value” … . People v Nieves, 2026 NY Slip Op 00979, First Dept 2-19-26

Practice Point: Here in this sexual abuse prosecution, the complainant’s testimony about a prior, uncharged sex act was deemed much more prejudicial than probative. Therefore the testimony was inadmissible, despite the argument that it was “inextricably intertwined” with the narrative of the crime or provided relevant background.

 

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THE JUDGE FAILED TO COMMUNICATE WITH THE OHIO COURT AFTER LEARNING OF ANOTHER CUSTODY-RELATED PROCEEDING THERE AND FAILED TO CONSIDER WHETHER IT SHOULD EXERCISE TEMPORARY EMERGENCY JURISDICTION BASED ON ALLEGATIONS OF DOMESTIC VIOLENCE IN MOTHER’S PETITION (FIRST DEPT).

The First Department, reversing Family Court, determined the judge committed reversible error by failing to communicate with the Ohio court after learning of another custody-related proceeding there. In addition, the judge failed to consider whether to exercise temporary emergency jurisdiction to protect mother and child. Mother’s custody petition alleged serious domestic violence:

Family Court failed to satisfy the procedural mechanism required by the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law, art 5-A) when a custody-related proceeding is pending in another state. Specifically, after the court became aware of the Ohio proceeding, the record does not reflect that the court attempted to communicate with the Ohio court, which is a reversable error … . * * *

… Family Court failed to comply with the statutory requirement to consider, under the circumstances presented and in light of the serious allegations of domestic violence in the mother’s petition, whether it was necessary to exercise temporary emergency jurisdiction to protect the mother and the child … . Matter of Shelby C.V. v Joshua W.K, 2026 NY Slip Op 01002, First Dept 2-17-26

Practice Point: It is reversible error for a judge to fail to communicate with a court in another jurisdiction after learning of another custody-related proceeding there.

Practice Point: Allegations of domestic violence may trigger the statutory requirement that a judge consider exercising temporary emergency jurisdiction to protect family members.

 

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THE JUDGE COMMITTED A MODE OF PROCEEDINGS ERROR BY FAILING TO ACCURATELY AND FULLY INFORM THE DEFENDANT OF THE CONTENTS OF A JURY NOTE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the judge committed a mode of proceedings error by not fully explaining the contents of a jury note. The defendant testified that he was sitting in his parked car, with the engine running for heat, listening to music because he didn’t want to disturb his family in a nearby house. The police noticed the car running and found the defendant asleep with an open beer in his hand. Defendant was charged with DWI and other offenses. The jury sent out notes seeking clarification of the term “operate” asking whether “operation” requires an intent to drive the vehicle or whether merely having the engine running constitutes “”operation:”

The court … read the note into the record as follows:

“We the jury would like clarification on the law regarding the first three charges. There is a portion that states the operation is intent to move the vehicle. There was, however, another segment. That segment, stated that operation is if the engine is running.”

When it read the note to the parties it omitted a question from the jury … . The full note stated:

“We would like clarification on the law regarding the first 3 charges. There is a portion that states that operation is intent to move the vehicle. There was however another segment that segment that stated that operation is if the engine is running. Are both correct?” … .

When the court read [another] portion of the note aloud, the court again altered the jury language. The court stated:

“And, then they also said the law for consumption of alcohol beverages in certain motor vehicles does not seem to contain a section that includes solely the engine running, which is also correct, and I will just read them that charge. Is that acceptable?”

But the note read:

“Also, the law for [Consumption] of Alcoholic Beverages in certain motor vehicles does not seem to contain the section that includes solely the engine is running. Is this also correct?. * * *

The court’s failure to read the jury note verbatim, or otherwise create a record demonstrating that the parties had received a copy of the note, deprived Mr. Galindo [defendant] of meaningful notice of the precise contents of the substantive jury note. By omitting the question “Are both correct?”, the court obscured the nature of the jury’s inquiry with respect to the “operates” element shared by the three counts of intoxication and the unlicensed operation charge. The jury’s question strongly suggests it wanted to know whether the “operates” instruction contained two distinct conditions either one of which could satisfy the “operates” element. Put differently, the jury’s question crystallizes its inquiry: whether intent to move the vehicle was necessary or a running engine was sufficient to meet the definition of operation. Had Mr. Galindo been accurately apprised of the contents of the jury note, he would have had the opportunity to provide input into how the court resolved the jury’s inquiry. Instead, Mr. Galindo was deprived of meaningful notice, and rereading the original CJI instruction responsible for the jury’s initial confusion did not adequately address the jury’s question. People v Galindo, 2026 NY Slip Op 00965, CtApp 2-19-26

Practice Point: Here the judge’s failure to read out the jury note verbatim constituted a  mode of proceedings error.

 

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THE MISTRIAL, GRANTED AFTER THE JURY WAS SWORN, DID NOT TRIGGER THE DOUBLE-JEOPARDY BAR TO FURTHER PROSECUTION BECAUSE THE JUDGE’S INQUIRY REVEALED THAT A JUROR’S COMMENTS, AND THE OTHER JURORS’ REACTIONS TO THOSE COMMENTS, IRREPARABLY TAINTED THE JURY (THIRD DEPT). ​

The Third Department, dismissing the defendant’s (respondent’s) prohibition petition, in a full-fledged opinion by Justice Mackey, determined that the mistrial granted after the jury had been sworn did trigger the double-jeopardy bar to further prosecution because the trial judge (the respondent) properly found “there was manifest necessity for the mistrial.” Comments made by juror No. 5, and other jurors reactions to the comments, irreparably tainted the jury:

… CPL 280.10 authorizes the court to declare a mistrial “[u]pon motion of the people, when there occurs during the trial, either inside or outside the courtroom, gross misconduct by . . . a juror, resulting in substantial and irreparable prejudice to the people’s case” … . * * *

… [J]uror No. 5’s comments and flagrant disregard for respondent’s admonitions resulted in “substantial and irreparable prejudice” to the People’s case (CPL 280.10 [2]). Although each juror averred that they could nevertheless remain fair and impartial, the record supports respondent’s contrary conclusion in light of the hesitation of many jurors to disclose juror No. 5’s conduct, the denial of others as to having heard any of the subject comments at all and another juror who gave contradictory answers about what he had heard, notwithstanding respondent’s instructions to report improper attempts to influence the jury. Matter of Guiden v Jose-Decker, 2026 NY Slip Op 00942, Third Dept 2-19-26

Practice Point: Consult this opinion for insight into the procedure to be followed by the judge before granting a mistrial after the jury has been sworn. To avoid the double-jeopardy bar to further prosecution, the record must demonstrate “a manifest necessity for a mistrial.”

 

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FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO DETERMINE PARENTAL ACCESS BY CONDITIONING ACCESS ON THE CONSENT OF THE CHILDREN (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined the court should not have delegated its authority to determine parental access by conditional parental access on the consent of the children:

… “[A] court may not delegate its authority to determine parental access to either a parent or a child” … . Here, the Family Court improperly delegated its authority to determine the father’s and the mother’s parental access with Destinee A. and Kaylee A. to those children. … [W]e remit the matter to the Family Court … for a new determination as to the father’s and the mother’s parental access with Destinee A. and Kaylee A. in accordance with the best interests of those children … . Matter of Destinee A. (Jacquelyn M.), 2026 NY Slip Op 00890, Second Dept 2-18-26

Practice Point: A Family Court judge cannot delegate his/her/their authority to determine parental access to the parties or the children.

 

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THE JUDGE’S QUESTIONING OF WITNESSES, GUIDANCE OF THE PROSECUTION, AND OBVIOUS BIAS IN FAVOR OF THE PROSECUTION DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the evidence supported the convictions but the judge’s questioning of witnesses and obvious bias in favor of the prosecution deprived defendant of a fair trial. The issue was not preserved for appeal but the Second Department considered it in the interest of justice:

“‘[A] trial judge is permitted to question witnesses to clarify testimony and to facilitate the progress of trial, and, if necessary, to develop factual information,’ so long as the judge does not take on the function or appearance of an advocate” … . Here, the Supreme Court engaged extensively in its own areas of inquiry, asked numerous leading questions of the People’s witnesses, including the complainant and a police officer, as to their observations of the defendant, elicited identification testimony, and guided the prosecution at length in its questioning.

Viewing the record as a whole, the Supreme Court improperly took on the function and appearance of an advocate. The court’s conduct left the impression that its opinion favored the credibility of the People’s witnesses and the merits of the People’s case … , thus depriving the defendant of a fair trial … . People v Morales, 2026 NY Slip Op 00913, Second Dept 2-18-26

Practice Point: A judge’s involvement in a prosecution which rises to the level of an advocate for the prosecution’s case deprives a defendant of a fair trial.

 

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