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THE DEFENDANT, PERSONALLY, MUST BE GIVEN THE OPPORTUNITY TO CONTROVERT THE PROSECUTION’S PREDICATE FELONY ALLLEGATIONS, AND TO CHALLENGE THE CONSTITUTIONALITY OF THE PREDICATE FELONY SENTENCING SCHEME, EVEN WHEN DEFENSE COUNSEL CONCEDES THE ISSUE; MATTER REMITTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, remitted the matter to give defendant the opportunity to personally controvert the prosecution’s predicate felony allegations, and to challenge the constitutionality of the predicate felony sentencing scheme, despite the defense attorney’s concession of the issue:

… [D]efendant’s challenge to his sentence has merit. The court denied defendant his statutory right to personally controvert the prosecution’s predicate felony allegations when it refused to consider his specific challenge and instead accepted defense counsel’s concession of the issue. Since the court summarily declared defendant a predicate felon and imposed an enhanced sentence, we modify and remit to Supreme Court, where defendant may controvert the predicate felony allegations and have an opportunity to assert his separate constitutional challenge to the Criminal Procedure Law’s predicate felony sentencing scheme. * * *

… Based on the full text of CPL 400.15 (3) and its placement in the predicate sentencing statutory scheme, we conclude that a court must ask the defendant personally if they wish to controvert any allegations in the prosecution’s statement. A totality of factors support this conclusion. First, CPL 400.15 (3) requires that the defendant receive a copy of the statement and that the court ask them if they wish to controvert any allegation contained therein. This procedure thus mandates that the defendant personally has notice of the allegations against them and a corresponding opportunity to be heard. Second, CPL 400.15 (3) refers to the defendant using personal pronouns, which is a deviation from the rest of the statute’s impersonal diction … .

Third, given the significant consequences of the decision to controvert and the information relevant to making that decision, it is unlikely that the legislature intended for defense counsel to be able to refuse to controvert in the face of the defendant’s opposition, without any further inquiry by the court. Indeed, the failure to controvert results in an automatic sentence enhancement in the present case and in any future sentences and therefore has lifetime ramifications … . …

These factors, considered together, make clear that the term “defendant,” as written in CPL 400.15 (3), refers to the defendant personally. In these key ways, CPL 400.15 (3) differs from provisions of the CPL that refer to the “defendant” interchangeably with “the defense,” without additional language suggesting that the legislature requires a court to direct its inquiry to the defendant. People v Wright, 2025 NY Slip Op 05869, CtApp 10-23-25

Practice Point: A defendant, personally, must be given the opportunity to controvert the prosecution’s predicate felony allegations, and to challenge the constitutionality of the predicate felony sentencing scheme, even in the face of defense counsel’s concession of the issue. Here the matter was remitted for that purpose​.

 

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THE JUDGE READ THE WRONG DEFINITION OF THE CHARGED OFFENSE TO THE JURY; NEW TRIAL ON THAT CHARGE ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s attempted robbery first degree conviction and ordering a new trial on that count, determined County Court provided the jury with the wrong definition of the offense:

Defendant was charged with attempted robbery in the first degree pursuant to Penal Law § 160.15 (2), defined as forcibly stealing property while armed with a deadly weapon. When the court instructed the jury on this count, it initially made reference to the requirement of being armed with a deadly weapon. However, when thereafter summarizing the elements of this crime, the court omitted the deadly weapon element and instead substituted in its place the element of causing serious physical injury to the victim, which is a different theory of robbery in the first degree … . This error was repeated by the court when the jury asked for the definitions of the crimes to be read back. Under these circumstances, the jury was left to consider an internally inconsistent definition of attempted robbery. Given that ” ‘the charge, read as a whole against the background of the evidence produced at trial, likely confused the jury regarding the correct rules to be applied in arriving at a decision’ ” … , the court’s error was not harmless and remittal for a new trial on this count is necessary … . People v Smith, 2025 NY Slip Op 05847, Third Dept 10-23-25

Practice Point: Here the judge’s reading the wrong definition of the charged offense to the jury required a new trial on that charge.

 

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THE PROOF OF ALL THE CHARGES, INCLUDING THE DEPRAVED INDIFFERENCE MURDER OF A TWO-YEAR-OLD CHILD, WAS SUFFICIENT TO SUPPORT THE CONVICTIONS; HOWEVER THE IMPROPER ADMISSION OF MOLINEUX EVIDENCE AND OTHER EVIDENTIARY ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined that the proof was sufficient to support all the convictions, including depraved indifference murder of a two-year-old child. Defendant claimed the child fell from a bunk bed. But the injuries were catastrophic and included a depressed skull fracture. A new trial was required because of evidentiary errors by the judge, including the admission of prior crimes and bad acts as Molineux evidence:​

Prior to trial, County Court partially granted the People’s Molineux application to the extent of allowing testimony pertaining to defendant’s prior acts of domestic violence and aggression toward the mother, as well as his 2011 conviction of aggravated driving while intoxicated (hereinafter DWI) with a minor in the car. … The People elicited trial testimony from the mother about a December 2017 incident in which defendant became explosively angry while drinking and “trash[ed]” her house; however, “[n]othing was physical” on that occasion. The mother also testified about a January 2018 incident in which defendant was physically violent, revealing that he had repeatedly punched her in the face and in the arm on that occasion. The People were allowed to introduce photographs of the bruises the mother sustained during the January 2018 incident. The evidence regarding defendant’s DWI conviction was referenced during his interview at the Sheriff’s Department in connection with the underlying incident, which was published to the jury.

The December 2017 incident of aggression did not involve physical violence, as alleged here, and was not probative of any issue in this case … . … [T]he photographs depicting the mother’s injuries from the January 2018 incident should not have been admitted into evidence, as they provided the ]jury with a visualization of defendant’s past violent conduct and were extremely prejudicial in the context of a prosecution requiring proof that defendant acted with a level of depravity sufficient to sustain a conviction under Penal Law § 125.25 (4) … . … The evidence pertaining to defendant’s 2011 DWI conviction also should not have been admitted, as it was not probative of any issue in the case, did not fit within any recognized Molineux exception, and was unduly prejudicial since it involved a different child and tended to suggest to the jury that defendant was previously reckless with a minor in his care while consuming alcohol. Since the proof of defendant’s guilt was entirely circumstantial and was not overwhelming, these improper Molineux rulings cannot be considered harmless … . People v Bohn, 2025 NY Slip Op 05846, Third Dept 10-23-25

Practice Point: Consult this decision for insight into what is and what is not admissible prior crime and bad-act (Molineux) evidence in a murder trial.

 

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IT WAS AN ABUSE OF DISCRETION TO RETURN THE CHILD TO MOTHER DURING THE PENDENCY OF NEGLECT PROCEEDINGS; MOTHER HAD INJURED THE CHILD AND THERE WAS INSUFFICIENT EVIDENCE THE IMPOSITION OF CONDITIONS FOR THE CHILD’S RETURN WILL ENSURE THE CHILD’S SAFETY (FIRST DEPT).

The First Department, reversing Family Court, determined mother’s application during the neglect proceedings for the return of her child should have been denied:

Family Court’s finding that the child should be returned to the mother lacked a sound and substantial basis in the record … .  Although the court properly determined, based on the evidence of the child’s physical injuries and her statements, that the mother was the person who inflicted the injuries, it was an improvident exercise of discretion to determine that the risk of harm could be mitigated by the conditions it imposed on the mother in the order under review … .

The court improvidently minimized both the nature and extent of the risk to the child and overstated the potential impact of its order on the child’s safety. Nothing in the mother’s testimony indicated that she understood the emotional harm she caused the child or expressed any genuine remorse over her actions. Initially, she tried to attribute the child’s injuries to an unrelated incident that took place several months earlier. She then claimed to be unaware of how the injuries occurred and ultimately opted to “plead the fifth.” Taken as a whole, the mother’s testimony reflects a lack of insight into how her conduct led to the child’s removal from her care. This lack of understanding further undercuts Family Court’s conclusion that services would be sufficient to mitigate the risk of harm posed to the child while in the mother’s care, and its belief that the mother would comply with the service plan. Although the mother took steps to enroll in services, the mere enrollment is insufficient to overcome the substantial evidence indicating that returning the child to her care would pose a risk to the child’s health and safety. Matter of M.M. (Chelsea B.), 2025 NY Slip Op 05887, First Dept 10-23-25

Practice Point: Here Family Court’s determination that imposing conditions for the child’s return to mother, who had injured the child, would ensure the child’s safety was not supported by the evidence. Therefore it was an abuse of discretion to order the child’s return to mother during the pendency of the neglect proceedings.​

 

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DEFENDANT WAS NOT NOTIFIED THAT IF HE FAILED TO PAY RESTITUTION HIS SENTENCE WOULD BE ENHANCED; ENHANCED SENTENCE VACATED AND AGREED-UPON SENTENCE IMPOSED (THIRD DEPT).

The Third Department, vacating defendant’s enhanced sentence and imposing the agreed-upon sentence, determined defendant was not given notice that his failure to pay restitution would result in an enhanced sentence. The agreed sentence was 2 to 6 years and the enhanced sentence was 4 to 12 years:

Defendant argues that County Court erred in imposing a prison sentence in excess of that promised in the plea agreement and requests that this Court resentence him to the agreed-upon term of 2 to 6 years in prison, without remanding the matter to County Court. Defendant contends that while payment of restitution was contemplated prior to sentencing, County Court never advised him that if he failed to pay restitution by the sentencing date it could impose an enhanced prison sentence. We agree. Defendant’s argument survives his unchallenged appeal waiver … . However, given that the court’s enhanced sentence was pronounced at the very end of the sentencing proceeding, without advance warning that it was considering an enhanced sentence or even a clear finding that defendant had violated an express condition of the plea agreement, we find that he had no practical ability to raise an objection and, thus, preservation was not required … . Under settled law, “the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence, and, conversely, 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” … . People v Nestler, 2025 NY Slip Op 05852, Third Dept 10-23-25

Practice Point: Consult this decision for an explanation of the criteria which allow a judge to ignore an agreed-upon sentence and impose an enhanced sentence.​

 

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THE RECORD DID NOT DEMONSTRATE COMPLIANCE WITH THE WAIVER-OF-INDICTMENT PROCEDURE, A JURISDICTIONAL DEFECT; PLEA VACATED; PLEA TO A SUBSEQUENT INDICTMENT INDUCED BY A CONCURRENT SENTENCE PROMISE VACATED AS WELL (FIRST DEPT).

The First Department, reversing defendant’s convictions by guilty pleas, determined the failure to comply with the waiver-of-indictment procedure required vacation of the plea, as well as the vacation of a plea induced by a concurrent sentence promise:

The record fails to demonstrate compliance with CPL 195.20. There is no evidence that defendant signed the indictment waiver in open court when the plea was entered because it is not dated as the same day as the plea. The court’s order affirming compliance with CPL 195.10 and 195.20 is also not dated and the court did not confirm on the record that defendant signed the waiver or make any reference whatsoever to it at the time of the plea. …

The failure to comply with CPL 195.20 is a jurisdictional defect that requires reversal of the judgment of conviction and dismissal of the superior court information … .

… [D]ismissal of the information necessitates dismissal of defendant’s subsequent plea … . Defendant pleaded guilty to first-degree robbery in exchange for a sentence of five years’ incarceration and five years’ postrelease supervision, to run concurrently … . Where, as here, a defendant’s guilty plea is “induced by the understanding that the sentence would be concurrent with the sentence imposed for [the prior] conviction, since set aside, the plea must be vacated” … . People v Smith, 2025 NY Slip Op 05902, First Dept 10-23-25

Practice Point: Failure to comply with the waiver-of-indictment procedure is a jurisdictional defect requiring vacation of the plea. A plea to a subsequent indictment induced by a concurrent sentence promise must also be vacated.

 

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PLAINTIFF WAS SEVERELY INJURED IN A FORKLIFT ACCIDENT AND BROUGHT THIS ACTION ALLEGING DEFECTIVE DESIGN; THERE WAS A DEFENSE VERDICT WHICH WAS REVERSED BECAUSE SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN ADMITTED AND SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN STRUCK (THIRD DEPT).

The Third Department, reversing the judgment finding the defendant’s forklift was not defectively designed, determined the admission and exclusion of expert evidence required a new trial. Plaintiff’s leg was crushed when the forklift he was operating struck a support beam in a warehouse. A portion of his leg was amputated. Defendant’s expert’s analysis was based in part on statistics that did not involve forklift-accidents and therefore was inadmissible. Plaintiff’s expert’s testimony about the need for future medical treatment was competent and should not have been struck:

Because the underlying data was specific to accidents involving defendant’s forklifts and plaintiff’s expert also relied upon and testified to that database, we find that Supreme Court properly allowed Marais [the defense expert]  to testify as to the rate of injuries sustained in the operation of defendant’s forklifts as computed from defendant’s database. However, the court abused its discretion in permitting testimony related to the utilization of the wider category of accidents involving “industrial truck and tractor operators,” as defendant failed to establish that the underlying conditions of those accidents were substantially similar to the facts presented here … . The core of Marais’ testimony was that the rate of injuries involving defendant’s forklifts was significantly lower than other industrial-related injuries. Even crediting that the federal database Marais utilized to make this comparison included forklift injuries, it also included a variety of other dissimilar industrial vehicles. In addition, there was no way to determine how many of the reported injuries therein were the result of forklift operations or, equally as important, the underlying conditions precipitating those accidents. * * *

… Supreme Court abused its discretion by striking Root’s (plaintiff’ medical expert’s] testimony and then limiting certain aspects of Thomas’ [plaintiff’s economist’s] testimony regarding plaintiff’s future medical expenses because the testimony was supported by “competent proof of necessary, anticipated medical costs through [a qualified physician] and [an] expert economist” … . Johns v Crown Equip. Corp., 2025 NY Slip Op 05856, Third Dept 10-23-25

Practice Point: Here plaintiff was injured in a forklift accident. Statistical evidence offered by defendant’s expert which included data that did not relate to forklifts should not have been admitted. To be admissible, statistical evidence must relate to substantially similar accidents.

Practice Point: Here the evidence of future medical procedures and costs offered by plaintiff’s medical expert and economist was competent and should not have been struck.

 

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DEFENDANT’S CONVICTION WAS REVERSED AND DEFENDANT APPLIED FOR BAIL; SUPREME COURT DENIED THE REQUEST WITHOUT THE REQUIRED EXPLANATION AND WITHOUT MAKING THE REQUIRED FLIGHT RISK DETERMINATION; DEFENDANT FILED A HABEAS CORPUS PETITION; PETITION HELD IN ABEYANCE PENDING THE ISSUANCE OF A NEW SECURING ORDER (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a two-judge concurring opinion, determined the habeas petition should be held in abeyance and a new securing order which complies with Criminal Procedure Law (CPL) 510.10 should be issued:

While awaiting retrial after his criminal conviction was reversed on appeal, defendant Diego Guerra applied for a new securing order under the current version of the bail law. That statute requires a court to “make an individualized determination” as to the defendant’s flight risk and to “explain the basis for its determination and its choice of securing order on the record or in writing” (CPL 510.10 [1]; see also 530.40 [4]). Supreme Court ordered the defendant remanded to custody but neither explained that decision nor made an explicit determination as to flight risk.

Defense counsel filed this habeas petition in the Appellate Division, and we now review that Court’s dismissal of the writ. We conclude that Supreme Court abused its discretion by failing to make an individualized flight risk determination and to explain both the basis for that determination and the choice of securing order, as required by statute. Accordingly, we reverse and remand to the Appellate Division for issuance of a new securing order in compliance with CPL 510.10. People ex rel. Kon v Lynelle Maginley-Liddie, 2025 NY Slip Op 05785, CtApp 10-21-25

Practice Point: Pursuant to CPL 510.10, in denying a request for bail, the judge must make an individualized flight-risk determination and explain the basis of that determination and the choice of securing order. The failure to comply with those statutory requirements is an abuse of discretion.

 

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HERE THE OFFICE OF COURT ADMINISTRATION’S (OCA’S) BLANKET ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE RE: THE FOIL REQUEST FOR COMMUNICATIONS BETWEEN OCA AND JUDGES WAS REJECTED; ALTHOUGH UPON REMAND THE PRIVILEGE MAY BE SHOWN TO APPLY TO INIDVIDUAL, IDENTIFIED DOCUMENTS, THE OCA DID NOT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP WITH ALL THE JUDGES SUCH THAT A BLANKET ASSERTION OF THE PRIVILEGE WAS APPROPRIATE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, determined that the Office of Court Administration (OCA) was not entitled to a blanket assertion of attorney-client privilege in response to a FOIL request by the NY Civil Liberties Union (NYCLU) that followed the leak of a 2021 internal OCA memorandum proposing a narrow reading of a recent court decisions which was widely distributed to judges:

… “[W]hether a particular document is or is not protected is necessarily a fact-specific determination, most often requiring in camera review” … . Without having identified or produced any documents for in camera review, OCA cannot assert a blanket privilege over the entire universe of potentially responsive documents. In reaching this conclusion, we do not suggest that Counsel’s Office could never establish such a relationship. But we decline to recognize the sweeping, ex ante privilege that OCA claims here.

We hold that OCA has failed to meet its preliminary burden of establishing an attorney-client relationship with all UCS judges. Should OCA continue to assert this privilege over any specific documents identified in response to the limited request upon which the parties have now agreed, the court on remittal should assess whether such documents fall within the asserted exemption, including by in camera review as necessary … . Matter of New York Civ. Liberties Union v New York State Off. of Ct. Admin., 2025 NY Slip Op 05784, CtApp 10-21-25

Practice Point: Here, in this FOIL case, the blanket assertion of the attorney-client privilege for communications between the Office of Court Administration (OCA) and all judges was rejected. Whether the privilege applies must be assessed in the context of a review of the individual documents identified in the request.

 

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DEFENDANT WAS PROSECUTED AND CONVICTED BY A SPECIAL DISTRICT ATTORNEY WHO DID NOT MEET THE RESIDENCY REQUIREMENTS IN THE COUNTY LAW; THE ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL; THE INDICTMENT WAS PROPERLY DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Fourth Department, determined the court was without authority to appoint a special district attorney who did not meet the residency requirements in the County Law. The defendant, who was convicted, raised the issue for the first time on direct appeal. The indictment was dismissed:

Defendant was charged in Orleans County with various counts of larceny based on allegations that he improperly sold a vehicle that was given to him for repairs and retained the proceeds. The Orleans County District Attorney moved to be disqualified from the case due to his relationship with the alleged victim. County Court granted the application and appointed a special district attorney pursuant to County Law § 701 (1) (a). That statute provides that when the district attorney is disqualified from acting in a particular case, “a superior criminal court in the county wherein the action is triable may . . . appoint some attorney at law having an office in or residing in the county, or any adjoining county, to act as special district attorney during the absence, inability or disqualification of the district attorney and such assistants as he or she may have.”

It is undisputed that the special district attorney did not have an office in or reside in Orleans County or any adjoining county and therefore did not satisfy the statute’s residency requirement. Although defendant received correspondence during the course of the prosecution that listed addresses for the special district attorney located in Erie County—which does not adjoin Orleans County—defendant did not challenge the special district attorney’s appointment or otherwise raise the issue before the trial court. After defendant was convicted, however, he raised the issue on direct appeal. The Appellate Division agreed with defendant that the court exceeded its authority by appointing a special district attorney who did not satisfy the residency requirement and dismissed the indictment on this ground … .  People v Callara, 2025 NY Slip Op 05739, CtApp 10-16-25

Practice Point: Here defendant was prosecuted and convicted by a special district attorney who did not meet the residency requirements in the County Law. The issue was first raised on appeal. The appellate court properly dismissed the indictment because the lower court did not have the authority to appoint a special district attorney in violation of the residency provisions of the County Law.

 

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