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ALTHOUGH THE BIPOLAR-DISORDER DIAGNOSIS WAS MADE “POST-CRIME,” THE EVIDENCE WAS RELEVANT TO DEFENDANT’S “MENTAL DISEASE OR DEFECT” AFFIRMATIVE DEFENSE AND SHOULD NOT HAVE BEEN PRECLUDED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the psychiatric evidence regarding defendant’s “post-crime” mental health (bipolar disorder) was relevant to defendant’s “mental disease or defect” affirmative defense and should not have been precluded. The psychiatrist could not testify defendant suffered from “bipolar disorder” at the time of offense, but could testify that the disorder takes years to develop, which meets the flexible “relevancy” test:

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” … . …

We conclude that “[i]nasmuch as the psychiatrist’s [prospective] testimony that defendant was suffering from [bipolar disorder, type 1, most recent episode manic with psychotic features] would render a finding of lack of criminal responsibility more probable than it would be without such evidence, the [psychiatrist’s] diagnosis [was] . . . relevant” … . …

Here, although the psychiatrist did not evaluate defendant prior to the crimes and thus could not render a medical opinion that defendant had bipolar disorder on the date of the crimes, “there were indications in [his] testimony that the mental disease from which defendant was suffering could take [years] to develop [before diagnosis] and [that] . . . the [prior medical] records . . . suggest[ed] the existence of some mental disorder a considerable time before the crime[s]” … . …

Finally, we conclude that the error is not harmless … . The preclusion of the psychiatrist’s testimony effectively prevented defendant from mounting his affirmative defense (see Penal Law § 40.15) and severely undermined his ability to separately argue that he lacked the requisite mental state to commit the charged offenses … . Inasmuch as ” ‘it cannot be said that there is no reasonable possibility that the error contributed to the verdict, the error cannot be deemed harmless beyond a reasonable doubt and reversal therefore is required’ ” … . People v Williams, 2026 NY Slip Op 04095, Fourth Dept 6-26-26

Practice Point: Consult this decision for insight into the relevancy of evidence. Here a post-crime bipolar disorder diagnosis was deemed relevant to defendant’s “mental disease or defect” affirmatve defense.​

 

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MOTHER’S BEHAVIOR DID NOT AMOUNT TO A FORFEITURE OF HER RIGHT TO COUNSEL IN THIS VISITATION PROCEEDING (THIRD DEPT).

The Third Department, reversing the order of Family Court in this visitation proceeding, determined mother was denied her right to counsel. After attempts to assign counsel failed, the judge essentially forced mother to proceed without an attorney:

Pursuant to Family Ct Act § 262 (a), respondents in visitation proceedings have a right to be represented by counsel and, if they are financially unable to obtain counsel, have the right to have counsel assigned by the court … . * * *

“Here, the record is clear that the mother did not wish to proceed pro se, but was forced to do so” … ; as such, “the record . . . does not indicate that [she] made a knowing and intelligent waiver of [her] rights to be represented by counsel” … . It appears from the record that Family Court determined that the mother had forfeited her right to counsel. Indeed, “[a] litigant may forfeit the right to assigned counsel through a persistent pattern of threatening, abusive, obstreperous, and uncooperative behavior with successive assigned counsel” … . However, such a forfeiture is an “extreme, last-resort” based upon “egregious conduct by a [respondent]” … . Simply put, while we are certainly mindful of the difficult position Family Court was in, “the record fails to clearly reflect that the mother engaged in the sort of egregious conduct that would justify a finding that she forfeited her right to assigned counsel” … . Matter of Carlene R. v Heather A., 2026 NY Slip Op 04015, Third Dept 6-25-24

Practice Point: In a Family Court visitation proceeding a party’s waiver of the right to counsel must be explicit. Here it was clear mother did not wish to go forward pro se.

 

 

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HERE THE DISTRICT ATTORNEY BROUGHT A PETITION FOR A WRIT OF PROHIBITION TO PROHIBIT THE ENFORCEMENT OF AN ORDER PRECLUDING EVIDENCE BECAUSE THE PEOPLE’S PRODUCTION OF DISCOVERY WAS DEEMED UNTIMELY; A WRIT OF PROHIBITION DOES NOT LIE FOR THIS PURPOSE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Quirk, determined that the trial judge’s preclusion of evidence based upon the district attorney’s untimely production of discovery was not subject to the extraordinary remedy of prohibition. The petition for a writ of prohibition was brought by the then district attorney:

Granting prohibition here would constitute improper collateral interlocutory review. This point is underscored by the Legislature’s amendment of CPL 450.20 to permit the People to appeal as of right from the portion of an order dismissing an accusatory instrument or some of its counts pursuant to CPL 245.80(2). In enacting this amendment, the Legislature chose to limit the types of appeals available to the People and did not permit the People to appeal from orders granting other remedies or sanctions under CPL 245.80(2), including orders precluding evidence, regardless of whether such orders would prevent the People from prosecuting a case. Contrary to the petitioner’s contentions, although the nonappealability of an order may be considered as a factor in favor of prohibition as part of the second step of the two-tiered analysis, “nonreviewability by way of appeal alone, does not provide a basis for reviewing error by collateral proceeding in the nature . . . of prohibition”  … .

Since a writ of prohibition does not lie, the Supreme Court should have denied that branch of the petition which was to prohibit the enforcement of the order of preclusion.  Matter of Rocah v McCarthy, 2026 NY Slip Op 03967, Second Dept 6-24-26

Practice Point: A writ of prohibition does not lie to prohibit the enforcement of an order precluding evidence becasue the production of discovery by the People was deemed untimely.

 

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THE JUDGE SHOULD NOT HAVE GRANTED A DEFAULT JUDGMENT, SUA SPONTE, AGAINST A DEFENDANT NOT NAMED IN PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; THE PHRASE IN PLAINTIFF’S SUMMARY JUDGMENT MOTION REQUESTING “SUCH OTHER RELIEF” AS IS DEEMED APPROPRIATE CANNOT BE THE BASIS FOR DISPOSITIVE RELIEF (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the judge should not have, sua sponte, granted a default judgment against defendant Molina in this foreclosure action. There were two defendants, Pena and Molina. Pena answered the complaint but Molina did not. The notice of motion seeking summary judgment did not mention Molina. Therefore the judge should not have granted relief not demanded by the plaintiff:

“Among the statutory requirements [set forth in CPLR 2214(a) and (b)] is that notices of motion set forth ‘the relief demanded and the grounds therefor.’ The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders a resulting order void” … . In other words, “[a] court lacks jurisdiction to grant relief against a defaulting party where that relief is not requested in the moving papers” … .

Here, since the plaintiff did not move for leave to enter a default judgment against Molina, the Supreme Court should not have, sua sponte, granted that relief … . As the court lacked jurisdiction to grant such relief … , so much of the order … , as, sua sponte, granted leave to enter a default judgment against Molina was rendered void … , “‘warranting vacatur pursuant to CPLR 5015(a)(4)'” … . As to the court’s reliance on the language in the notice of motion seeking “such other and further relief that this Court deems just and proper,” this Court has explicitly held that courts may not “rely upon general relief clauses in noticed motions—’for such other and further relief the court deems just and proper’—to justify the sua sponte [granting of dispositive relief]” … . Citimortgage, Inc. v Pena, 2026 NY Slip Op 03940, Second Dept 6-24-26

Practice Point: The phrase in motion papers requesting “such other relief as is deemed appropriate” cannot be the basis for dispositive relief.​

 

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IN THESE TWO DISTINCT CASES, THE DEFENDANTS CHALLENGED THE CONSENT-TO-SEARCH CONDITION OF THEIR PROBATION; IN “BRAZEAL” THE COURT HELD THE CONDITION WAS NOT WARRANTED BY DEFENDANT’S CRIMINAL HISTORY; IN “LORA” THE COURT REFUSED TO CONSIDER THE ARGUMENT BECAUSE IT WAS NOT RAISED BEFORE THE SENTENCING COURT (CT APP).

​The Court of Appeals, reviewing two decisions, with multiple concurring and dissenting opinions, determined (1) in People v Brazeal the probation condition allowing searches by probation officers was deemed inappropriate given defendant’s criminal history, and (2) in People v Lora the defendant made the same challenge to the consent-to-search probation condition, but since the issue was not preserved, merits were not reached:

We conclude that the sentencing court abused its discretion in imposing the consent-to-search condition on Brazeal. Although his conviction was for a crime of violence, at no point was Brazeal shown to otherwise possess firearms or illegal weapons, and the knife used in his crime was an ordinary kitchen knife. The Appellate Division referenced his “history of violence” … , but that characterization overstates the defendant’s relatively remote criminal history. He had a previous conviction for property destruction in Las Vegas, a harassment conviction with “physical contact” in the Bronx, and a youthful offender adjudication for assault in Yonkers, the most recent of which was almost a decade before the present offense. The 2007 youthful offender adjudication is the only other incident that references the use of an unspecified “weapon/instrument,” and only the 2007 and 2009 proceedings included assault charges. None of Brazeal’s arrests in Georgia resulted in further prosecution apart from an outstanding warrant for failure to appear. Aside from these facts, the record reflects no basis for the imposition of the condition. Brazeal has not been assessed as being in need of alcohol or substance abuse treatment, the People concede that substance abuse is not implicated in his case, and his admission of occasional marijuana use in the past does not support further supervision. On this record, the sentencing court abused its discretion by imposing a condition that was not “individually tailored in relation to the offense[ ]” or to Brazeal’s “rehabilitation” … .

Because she did not object to the consent-to-search condition before the sentencing court, Lora’s statutory and constitutional challenges are unpreserved for our review … . People v Brazeal, 2026 NY Slip Op 03910, CtApp 6-23-26

Practice Point: To appeal a consent-to-search condition of probation (to the Court of Appeals), the issue must be preserved by raising it in the sentencing court.

 

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THE APPELLATE DIVISION ABUSED ITS DISCRETION IN DISMISSING TWO APPEALS FOR “FAILURE OF TIMELY PROSECUTION OR PERFECTION;” CRITERIA EXPLAINED (CT APP).

The Court of Appeals, without discussing the facts, determined the appellate division abused its discretion in dismissing two appeals for “failure of timely prosecution or perfection:”

We have identified as relevant factors (1) the length of the appellant’s delay; (2) the reasonableness of any excuse for the delay, including whether the appellant received clear instructions on how to pursue an appeal and whether the delay was strategic or resulted from a belated change in strategy; and (3) the specific prejudice, if any, the respondent has suffered from the delay (Perez, 23 NY3d at 99-101; Taveras, 10 NY3d at 233; People v West, 100 NY2d 23, 27-28 [2003]). Under the circumstances of these cases, including the People’s concession, the Appellate Division abused its discretion in dismissing defendants’ appeals. People v Matthews, 2026 NY Slip Op 03908, CtApp 6-18-26

Practice Point: Consult this decision for the criteria the appellate division should apply to the dismissal of an appeal for “failure of timely prosecution or perfection.”

 

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THE EQUAL RIGHTS AMENDMENT DOES NOT RENDER THE MANDATORY RETIREMENT AGES FOR JUDGES UNCONSTITUTIONAL (CT APP). ​

The Court of Appeals determined the mandatory retirement ages for judges (70 and 76) do not violate the Equal Rights Amendment (ERA) and do not constitute “age discrimination:”

Members of the judiciary in New York State have been subject to a mandatory retirement age since the adoption of our first State Constitution in 1777. In the current Constitution, article VI, § 25 (b) mandates retirement at 70 years old, with an opportunity for certain judges and justices to serve until age 76. Petitioners, former and sitting justices of the New York State Courts, contend that this provision was implicitly repealed by the Equal Rights Amendment (“ERA”) of 2024, which amended article I, § 11 to add, inter alia, age to the classes protected from discrimination in the exercise of civil rights. Petitioners argue that as a result of this alleged implicit repeal, Judiciary Law §§ 23 and 115, which together implement the constitutional mandatory retirement age cap and certification system set forth in article VI, § 25 (b), are now unconstitutional. However, we have long held that implied repeal is disfavored … . The text, purpose, and history of these constitutional provisions establish that they operate independently: article VI, § 25 (b)’s retirement mandate addresses a different constitutional matter than the ERA, and the two provisions are not antagonistic and may be harmonized. Therefore, we affirm the Appellate Division order affirming dismissal of the underlying petition. Matter of Miller v State of New York, 2026 NY Slip Op 03907, CtApp 6-18-26

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THE DEFENSE REQUEST FOR A MISSING WITNESS JURY INSTRUCTION WAS PROPERLY DENIED; ANALYTICAL CRITERIA EXPLAINED (CT APP).

The Court of Appeals, affirming defendant’s conviction, determined the trial judge properly denied the defense request for a missing witness charge. The Court explained the analytical criteria:

A jury convicted defendant of attempted murder in the second degree …  arising from an altercation at a traffic signal where defendant shot and permanently paralyzed the victim. Defendant asserted a justification defense. Defendant, defendant’s son, the victim, and one of the two other men travelling in the victim’s car testified to the events. Because the People did not call the third man travelling in the victim’s car to testify, defendant requested a missing witness instruction. * * *

The proponent of a missing witness charge must first “promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify” … . Once the proponent has satisfied that initial burden, the burden shifts to the opponent “to account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate” … . … [T]he opposing party may establish that the missing witness charge would be inappropriate because the missing witness’s testimony would be cumulative … . If the opponent successfully rebuts the proponent’s prima facie showing, “the proponent retains the ultimate burden to show the charge would be appropriate” … .

… The People met their burden to show that the missing witness’s testimony would have been cumulative by specifically directing the court to the trial testimony and the supporting deposition of the missing witness, which offered a reasonable expectation of how the witness would testify by recounting the witness’s observations of the charged conduct. When the court asked defense counsel if she had anything to add to its review, counsel said, “[n]o,” thus failing to point to any deficiencies in the missing witness’s deposition, inconsistencies with the testimony of the other witnesses, or evidence in the record or elsewhere that might establish noncumulative testimony the missing witness might give … . People v Khiamdavanh, 2026 NY Slip Op 03903, CtApp 6-18-26

Practice Point: Consult this decision for insight into the analytical criteria to be applied when the defense requests a missing witness jury instruction.

 

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THE DENIAL OF THE JURY’S REQUEST TO SEE MRI IMAGES ON THE GROUND VIEWING THEM WAS “BEYOND THE KEN” OF THE JURY WAS REVERSIBLE ERROR (SECOND DEPT).

The Second Department, reversing the denial of plaintiff’s motion to set aside the verdict, determined the judge should not have withheld from the jury MRI images on the ground they were “beyond the ken” of the jury:

… [T]he Supreme Court failed to respond meaningfully to the jury’s request to view all of the infant plaintiff’s MRI images during deliberations … . Although the MRI images were admitted into evidence at trial, the court denied the jury’s request to view the MRI images during deliberations on the ground that viewing them was “beyond the ken of a juror.” … [T]he error deprived the plaintiffs of “substantial justice” with respect to the jury’s finding that Halitsky’s departure was not a substantial factor in causing the infant plaintiff’s injury … . Accordingly, the court should have granted that branch of the plaintiffs’ motion which was pursuant to CPLR 4404(a) to set aside so much of the jury verdict as was in favor of Halitsky …. J.T.M. v Parrinello, 2026 NY Slip Op 03787, Second Dept 6-17-26

Practice Point: Here the judge should not have refused the jury’s request to view MRI images which were in evidence on the ground they were “beyond the ken” of the jury.

 

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DEFENDANT ALLEGED HIS ATTORNEY DELIBERATELY WITHHELD IMPEACHMENT EVIDENCE ABOUT AN EXPERT WITNESS WHEN HIS ATTORNEY PERSUADED HIM TO HIRE THE EXPERT; BECAUSE OF THE IMPORTANCE OF THE EXPERT’S TESTIMONY, A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court should have held a hearing on defendant’s motion to vacate the judgment of conviction on ineffective-assistance grounds. Defendant alleged his attorney, Mary Rain, deliberately withheld impeachment information about an expert witness, Baerthlein, when persuading defendant to hire the expert:

… [D]efendant’s claim is that Rain was ineffective because she deliberately withheld impeachment evidence about Baerthlein when she persuaded defendant to hire him as an expert and the sole defense witness; that same impeachment evidence was ultimately used to vitiate Rain’s chosen defense; and that defendant would not have retained Baerthlein if Rain had disclosed the evidence in the first place. Given the central importance of Baerthlein’s credibility — particularly “in a case such as this, where casting doubt on the prosecution’s medical proof is the crux of the defense” … — Rain’s alleged failures, if true, were not the product of a legitimate but ill-advised trial strategy … . People v Thornton, 2026 NY Slip Op 03699, Third Dept 6-11-26

Practice Point: Here the allegation defense counsel deliberately withheld impeachment evidence about an expert witness while persuading defendant to hire the expert raised a factual question which required a hearing re: defendant’s motion to vacate his conviction on ineffective-assistance grounds.

 

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