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THE JUDGE DID NOT FOLLOW THE REQUIRED PROCEDURE FOR FINDING NEGLECT ON A GROUND NOT ALLEGED IN THE PETITION; TO DO SO, THE JUDGE MUST AMEND THE ALLEGATIONS IN THE PETITION TO CONFORM TO THE PROOF AND GIVE THE RESPONDENT TIME TO RESPOND TO THE AMENDED ALLEGATIONS; NEITHER WAS DONE; PETITION DISMISSED (FOURTH DEPT).

The Fourth Department, dismissing the neglect petition, determined Family Court did not follow the required procedure for finding neglect on a ground which was not alleged in the petition. The court may amend the allegations in the petition to conform to the proof, provided the respondent is given a reasonable time to respond to the amended allegations. Here the court did not amend the allegations or give mother time to respond:

Pursuant to Family Court Act § 1051 (b), “[i]f the proof does not conform to the specific allegations of the petition, the court may amend the allegations to conform to the proof; provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations.” Here, the basis for the court’s finding of neglect pursuant to section 1012 (f) (i) (B) was not alleged in the petition, and the court did not amend the allegations to conform to the proof or give the mother notice or an opportunity to respond to any such implied amendment … . As the mother contends, had she known that the court was considering a theory of neglect based solely on her post-disclosure conduct, she would have prepared a defense to that theory. We therefore conclude that the court’s finding of neglect on that ground was improper … , and the petition must be dismissed … . Matter of Mariah W. (Amber N.), 2025 NY Slip Op 06487, Fourth Dept 11-21-25

Practice Point: To find neglect on a ground not alleged in the petition, the judge must conform the allegations in the petition to the proof and give the respondent time to respond to the amended allegations. Here the failure to follow that procedure resulted in dismissal of the petition.

 

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THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION IN DENYING A YOUTHFUL OFFENDER ADJUDICATION, DESPITE THIS BEING DEFENDANT’S FIRST CONTACT WITH THE JUDICIAL SYSTEM, HIS ACQUITTAL OF THE MOST SERIOUS CHARGES, AND AFFIDAVITS FROM SEVERAL JURORS IN SUPPORT OF THE MOTION TO SET ASIDE THE VERDICT; THERE WAS A SUBSTANTIVE DISSENT (THIRD DEPT).

The Third Department, affirming defendant’s attempted assault conviction and the denial of youthful offender status, over a dissent, determined the trial court did not abuse its discretion in denying the request for a youthful offender adjudication. The victim was slashed with a knife in the abdomen and arm. It was defendant’s first contact with the criminal justice system. Affidavits from some of the jurors were submitted in support of defendant’s motion to set aside the verdict:

… Supreme Court noted that it had received multiple letters in support of defendant which indicated that he was of “upstanding character.” The court agreed with defendant’s assertion that this was his first involvement with the criminal justice system and that he had avoided circumstances like this in the past. The court considered these facts in imposing the sentence, but also that there was no evidence that any other individual had been involved in the physical altercation between defendant and the victim. The court expressly disbelieved defendant’s explanation that he carried the knife at all times because he feared for his safety, in view of the fact that defendant’s presence with the knife was explicitly requested. The court noted that if defendant was truly afraid for his safety the appropriate response would be to call campus police, not show up to the fight with knife in tow. The court also paid importance to defendant’s failure to take accountability or acknowledge that his actions caused the victim’s injury, despite having expressed generalized sympathy for the victim. The court found that, although eligible for youthful offender status, the circumstances of the crime did not warrant granting the request and imposed a five-year term of incarceration. * * *

From the dissent:

… “[Y]outhful offender designations are given to those who have a real likelihood of turning their lives around, and the protection gives these individuals the opportunity for a fresh start, without a criminal record” … . That is precisely what the facts of this case present: an individual who made a grave mistake but appears motivated to redeem himself. In my view, although defendant’s crime is significant, justice is better served by imposing a sentence that is commensurate with the severity of his crime while also permitting him to become a productive member of society upon release, which will occur at a critical time in his transition to adult life … . People v Hall, 2025 NY Slip Op 06366, Third Dept 11-20-25

Practice Point: Consult this decision for insight into the broad discretion accorded a judge in determining whether to adjudicate a defendant a youthful offender.​

 

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THE DEFENDANT’S WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE FAILED TO ADVISE DEFENDANT (1) THAT THE STATE WOULD BEAR THE COSTS OF AN APPEAL IF THE DEFENDANT COULD NOT AFFORD THEM; AND (2) THE WAIVER DID NOT ENCOMPASS THE LOSS OF RIGHTS TO COUNSEL AND THE WAIVER OF COSTS, FEES, AND EXPENSES; IN ADDITION THE JUDGE DID NOT ASCERTAIN WHETHER DEFFENDANT READ AND UNDERSTOOD THE WRITTEN WAIVER FORM, OR WHETHER DEFENDANT HAD DISCUSSED THE WAIVER WITH COUNSEL (SECOND DEPT). ​

The Second Department determined defendant’s waiver of appeal was invalid:

… [T]he defendant’s purported waiver of his right to appeal was invalid. Among other things, during the appeal waiver colloquy, the Supreme Court failed to advise the defendant that if he could not afford the costs of an appeal or of an attorney to represent him on appeal, then the State would bear those costs … or to advise the defendant that the waiver of the right to appeal did not encompass the loss of attendant rights to counsel and the waiver of costs, fees, and expenses … . Although the defendant executed a written appeal waiver form, the court failed to ascertain on the record whether the defendant had read the written waiver, was aware of all of its contents, and had discussed the entire written waiver with counsel, including the portion of the written waiver addressing the attendant rights to counsel and the waiver of costs, fees, and expenses … . Thus, under the circumstances of this case, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal, and the purported appeal waiver does not preclude appellate review of any of the defendant’s contentions … . People v Mingo, 2025 NY Slip Op 06335, Second Dept 11-19-25

Practice Point: Consult this decision for insight into what a judge must advise and ask the defendant to ensure the waiver of appeal is knowing and intelligent.

 

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A JUDGE CANNOT DELEGATE PARENTAL ACCESS DETERMINATIONS TO A MENTAL HEALTH PROFESSIONAL (SECOND DEPT). ​

The Second Department noted that a judge should not delegate to a mental health professional the determination of whether a parent will be awarded parental access:

“[A] court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded [parental access] rights” … . It is “improper for [a] court to condition future [parental access] on the recommendation of a mental health professional” … . Here, the Family Court erred by delegating to the therapeutic agency (1) the authority to determine when therapeutic parental access would cease and the father’s prior stipulated unsupervised parental access schedule would be reinstated and (2) the discretion to expand and/or modify the father’s access to the children … . Accordingly, the order must be modified by deleting the provisions thereof modifying the parental access provisions of the judgment of divorce so as to condition the father’s parental access on the therapeutic agency’s determinations. Matter of McCook v Delbrune, 2025 NY Slip Op 06322, Second Dept 11-19-25

 

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THE SECOND DEPARTMENT HAD REVERSED ON APPEAL, DETERMINING THE COMPLAINT SHOULD HAVE BEEN DISMISSED; WHEN SUPREME COURT WROTE A JUDGMENT DISMISSING THE COMPLAINT BASED ON THE SECOND DEPARTMENT’S DECISION IT IMPROPERLY ADDED A SENTENCE WHICH WAS NOT IN THE DECISION; A JUDGMENT BASED UPON AN APPELLATE DECISION MUST STRICTLY CONFORM TO THE DECISION (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the judgment entered by Supreme Court after reversal on apply did not strictly conform to the Second Department’s decision. Presumable the extra sentence added by Supreme Court was struck on appeal:

… [T]he judgment should not have included the provision directing “that Plaintiff is permitted to file a new action as against [the defendant] in accordance with Brothers v. Florence, 95 NY2d 290 (2000),” as the judgment was entered upon this Court’s decision and order dated December 28, 2022 … , which did not grant such relief to the plaintiff … . “A ‘written order [or judgment] must conform strictly to the court’s decision,’ and in the event of an inconsistency between a judgment and a decision or order upon which it is based, the decision or order controls” … . “Such an inconsistency may be corrected either by way of a motion for resettlement or on appeal” … . Deutsche Bank Trust Co. Ams. v Smith, 2025 NY Slip Op 06308, Second Dept 11-19-25

Practice Point: After reversal on appeal, any judgment written by the lower court must strictly conform to the language of the appellate decision. Here Supreme Court wrote a judgment dismissing the complaint but improperly added a sentence (which was not in the appellate decision) to the effect that plaintiff was permitted to file a new action.

 

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DEFENDANTS IN THIS BREACH OF CONTRACT ACTION SHOULD HAVE BEEN SANCTIONED FOR SPOLIATION OF EVIDENCE, I.E., THE DESTRUCTION OR LOSS OF EMAILS; PLAINTIFFS’ MOTION TO STRIKE THE ANSWER WAS PROPERLY DENIED; HOWEVER, PLAINTIFFS WERE ENTITLED TO AN ADVERSE INFERENCE JURY INSTRUCTION AT TRIAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants should have been sanctioned for spoliation of evidence, i.e., the failure to preserve relevant emails. The plaintiffs alleged defendants performed faulty renovation-work and thereby breached the renovation contract:

“Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” … . “The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” … . “A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” … . “‘A culpable state of mind for [the] purposes of a spoliation sanction includes ordinary negligence'” … . Further, “[s]triking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct and, in order to impose such a sanction, the court ‘will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'” … . “In contrast, where the moving party has not been deprived of the ability to establish his or her case or defense, a less severe sanction is appropriate” … . “[A]dverse inference charges have been found to be appropriate even in situations where the evidence has been found to have been negligently destroyed” … .

… [P]laintiffs demonstrated that the defendants were on notice that they had an obligation to preserve their email accounts and emails prior to the time that they were lost or destroyed. The plaintiffs also demonstrated that the emails were lost or destroyed with a culpable state of mind and that the emails were sufficiently relevant to the litigation … . Nonetheless, contrary to the plaintiffs’ contention, the drastic remedy of striking the defendants’ answer was not warranted … . Under the circumstances, the Supreme Court should have granted that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike the defendants’ answer to the extent of directing that an adverse inference charge be issued at trial against the defendants with respect to the loss or destruction of their email accounts and emails … . Dorman v Luva of NY, LLC, 2025 NY Slip Op 06155, Second Dept 11-12-25

Practice Point: Consult this decision for a concise explanation of the criteria for finding spoliation of evidence and the appropriate sanctions. In this breach of contract action, plaintiffs demonstrated defendants destroyed or lost relevant emails with a “culpable state of mind.”

 

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RESPONDENT THREATENED SELF HARM AND WAS TAKEN INTO CUSTODY PURSUANT TO THE MENTAL HYGIENE LAW; THE JUDGE DECLINED TO ISSUE A TEMPORARY “EXTREME RISK PROTECTION ORDER” (ERPO) AND SET THE MATTER DOWN FOR A HEARING; SUBSEQUENTLY THE JUDGE, SUA SPONTE, CANCELED THE HEARING AND DISMISSED THE PETITION, ACTIONS FOR WHICH THE JUDGE HAD NO AUTHORITY; MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the judge, who had declined to issue a temporary “extreme risk protection order” (ERPO) for respondent and had set the matter down for a hearing, did not have the authority to, sua sponte, cancel the hearing and dismiss the petition. After respondent had threatened self harm he was taken into custody pursuant to the Mental Hygiene Law:

… [O]ne day prior to the scheduled hearing, Supreme Court, sua sponte, issued a decision canceling the hearing and dismissing the petition. As grounds for the dismissal, the court found that dismissal best served the interest of preserving judicial and law enforcement resources given respondent’s inability to purchase a firearm due to the arrest pursuant to Mental Hygiene Law § 9.41, purported hospital admission pursuant to Mental Hygiene Law § 9.39 (a) and the lack of any indication that respondent owned any firearms in New York at the time of the proceeding. …

To begin, as the order on appeal was issued on a sua sponte basis, no appeal lies as of right (see CPLR 5701 [a] [2]). Nevertheless, “we treat the notice of appeal as a request for permission to appeal and grant the request” … .

… Supreme Court’s sua sponte order dismissing the petition must be reversed. “[S]ua sponte dismissals are to be used sparingly and only when extraordinary circumstances exist to warrant them” … . Here, there is no indication that such extraordinary circumstances exist. The grounds relied upon by Supreme Court — that the relief that would be provided by an ERPO was “duplicative and an inefficient use of judicial and law enforcement resources” — to the extent that they could constitute meritorious grounds for dismissal, require that petitioner be given the opportunity to respond and object … . Moreover, CPLR 6343 (1) clearly mandates that if a temporary ERPO is denied, such as occurred here, the court hold a hearing, no later than 10 business days after the application for the ERPO is served on the respondent, to determine whether an ERPO should be issued. Supreme Court’s sua sponte dismissal on grounds that are entirely absent from the statute was improper, and we therefore reverse and remit to conduct a hearing as required. Matter of Hogencamp v Matthew KK., 2025 NY Slip Op 06106, Third Dept 11-6-25

Practice Point: Sua sponte orders are not appealable as of right. Permission to appeal must be requested.​

Practice Point: Here the respondent threatened self harm and was taken into custody pursuant to the Mental Hygiene Law. A judge’s authority is constrained by the Mental Hygiene Law. Once an “extreme risk protection order” (ERPO) is denied by the judge and the matter is set down for a hearing, the judge cannot, sua sponte, cancel the hearing and deny the petition for reasons not prescribed in the Mental Hygiene Law.

 

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THE “REFRAIN FROM GANG-RELATED ASSOCIATIONS” PROBATION CONDITIONS WERE STRUCK BECAUSE THERE WAS NO EVIDENCE DEFENDANT HAD ANY CONNECTION WITH GANGS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined a probation condition imposed by the court must be stricken because it was not shown to be related to “defendant’s rehabilitative prospects:”​

Defendant’s challenges to two of his probation conditions as unrelated to his rehabilitation do not require preservation and survive his waiver of the right to appeal … . * * *

… [T]he probation condition requiring defendant to “[r]efrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang if directed by the Department of Probation” must be stricken, as there is no evidence that defendant’s crime was connected to any gang activities or that he has any history of gang membership or gang … . Accordingly, this condition was not reasonably necessary to further defendant’s rehabilitative prospects based on his background and proclivities …. . People v Holguin, 2025 NY Slip Op 06141, First Dept 11-6-25

Practice Point: Challenges to probation conditions need not be preserved for appeal and survive a waiver of appeal.

Practice Point: The appellate courts will strike probation conditions which are not demonstrated to be relevant to the defendant’s offense. Two other decisions, not summarized here, were released this week in which the probation condition requiring defendant to financially support dependents was struck because it was not shown to be relevant to defendant’s rehabilitation for the charged offense. (People v Bonfante, 2025 NY Slip Op 06068, Second Dept 11-6-25;  People v Larkin, 2025 NY Slip Op 06077, Second Dept 11-6-25)

 

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PETITIONER, A TRANSGENDER INDIVIDUAL, WAS ENTITLED, FOR PERSONAL SAFETY REASONS, TO THE SEALING OF THE RECORD OF HER NAME-CHANGE PROCEEDING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, a transgender individual, was entitled, for her personal safety, to the sealing of the record of her name-change proceeding:

We analyzed Civil Rights Law § 64-a in Matter of Cody VV. (Brandi VV.) (226 AD3d 24 [3d Dept 2024]). There, Supreme Court — the same justice — denied an applicant’s request to seal the record of the applicant’s name-change proceeding … . Reversing the court’s denial and ordering the applicant’s record sealed, we observed, in sum and substance, that the relevant statutory language reflects the Legislature’s determination that transgender individuals face threats to their personal safety that are real, constant and everywhere … . Thus, only in an “extraordinary” case will there be a “substantial basis” to find that an open court record of a name change proceeding would not place a transgender applicant’s safety at risk … .

In a “customary” case like this one, protecting the applicant from the threat of harm posed by an open court record of a name change proceeding necessarily takes priority over the public’s ability to access that court record … . To reverse those priorities is to intrude upon the policymaking authority of the Legislature. To deny a sealing request based upon those inverted priorities is to abuse the limited judicial discretion available under Civil Rights Law § 64-a. To 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 … .

​… [P]etitioner affirmed her transgender status and that she was seeking to change her name to one that reflects her female gender identity, which is the name she uses in her personal and professional life. She expressed her fear that public access to her name change would disclose her transgender status and place her at increased risk of hate crimes, harassment and other discrimination. In view of the totality of circumstances … , petitioner has demonstrated that she is entitled to have the record of her name change proceeding sealed pursuant to Civil Rights Law § 64-a … . Matter of Kieran B., 2025 NY Slip Op 06006, Third Dept 10-30-25

Practice Point: In Civil Rights Law 64-a, the legislature recognized the personal safety issues raised when a transgender individual seeks a name-change. Therefore, sealing of the name-change record reflects the legislative intent and should be the general rule.

 

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THE WAS NO PROOF DEFENDANT VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT AT THE SORA RISK-LEVEL HEARING; ORDER REVERSED AND MATTER REMITTED FOR A NEW HEARING (SECOND DEPT).

The Second Department, reversing the SORA risk-level determination, held that the record did not establish that defendant waived his right to be present at the risk-level hearing:

“A sex offender facing risk level classification under SORA has a due process right to be present at the SORA hearing” (… see Correction Law § 168-n[3]). “To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence” … . “Before proceeding in the defendant’s absence, the court must make an inquiry and recite on the record the facts and reasons it relied upon in determining that the defendant’s absence was deliberate” (… see Correction Law § 168-n[6]). Here, defense counsel expressly stated that the defendant was not waiving his right to be present after he failed to appear for the SORA hearing, and there is no evidence in the record that the defendant was made aware of the consequences of failing to appear for the SORA hearing or that his absence … was deliberate.

Since the record fails to establish that the defendant voluntarily waived his right to be present at the SORA hearing, the order must be reversed and the matter remitted to the Supreme Court, Kings County, for a new risk level assessment hearing and a new determination thereafter, to be preceded by notice to the defendant in accordance with Correction Law § 168-n(3). People v Blount, 2025 NY Slip Op 05972, Second Dept 10-29-25

Practice Point: Consult this decision for insight into what must be placed on the record to explain a defendant’s absence from a SORA risk-level-assessment proceeding.

 

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