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SUPREME COURT PROPERLY CONSOLIDATED TWO INDICTMENTS, CRITERIA EXPLAINED; THERE WAS A COMPREHENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, affirming the convictions, determined Supreme Court properly consolidated two indictments. A comprehensive dissent disagreed:

… [T]he court properly exercised its discretion in granting consolidation pursuant to CPL 200.20 (2) (b) because there is significant common evidence supporting both indictments. Most importantly, the same weapon was involved in the events underlying both indictments, and—indeed—is the critical piece of evidence supporting both … . * * *

… [T]he court properly exercised its discretion in granting consolidation of the indictments on the additional basis that they charged offenses that are “defined by the same or similar statutory provisions” (CPL 200.20 [2] [c]). * * *

In opposing joinder, defendant failed to meet the statutory standard of showing that he had “a genuine need to refrain from testifying . . . [to] satisf[y] the court that the risk of prejudice is substantial” (CPL 200.20 [3] [b]). * * * …[D]efendant failed to demonstrate “that he had ‘both important testimony to give concerning one [offense] and a genuine need to refrain from testifying on the other’ ” … . People v Spinks, 2025 NY Slip Op 04303, Fourth Dept 7-25-25

Practice Point: Consult this decision for insight into the criteria for consolidating two indictments, fleshed out by a comprehensive, detailed dissent.

 

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THE FIRST DEPARTMENT, AGREEING WITH THE SECOND, DETERMINED THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DOES NOT HAVE THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER WHO HAD BEEN ABUSED BY RESPONDENT FATHER IN THE CHILD’S PRESENCE; THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER IS ONLY TRIGGERED WHEN THE COURT ORDERS THE CHILD REMOVED FROM THE HOME, NOT THE CASE HERE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, considering the appeal as an exception to the mootness doctrine, determined the court did not have the authority under the Family Court Act to order the Administration for Children’s Services (ACS) to supervise a so-called “nonrespondent” mother who had been abused by respondent father in the presence of the 14-month-old child. By all accounts mother was “a good mother” and “very strong [and] hard-working.” Yet over the course of six months mother was subjected to 15 announced and unannounced home visits by an ACS caseworker who searched every room, the contents of the refrigerator, and inspected the child’s body:

As noted by the Sapphire W. Court [237 AD3d 41, Second Dept, 2-5-25] “in 2015, the Legislature enacted sweeping legislation that amended various statutes, including Family Court Act § 1017, in order to provide nonrespondent parents with greater participation in abuse or neglect proceedings, while also expand[ing] the options available to Family Court judges when craft[ing] appropriate orders respecting the rights of non-respondent parents [and] assuring the safety and well being of children who are the subjects of the proceedings . . . . Among other things, the legislation clarifie[d] the language of Family Court Act § 1017 by referring specifically to non-respondent parent, relative or suitable person as potential resources a court may consider after determining that a child must be removed from his or her home” … .

We agree with the sound reasoning in Matter of Sapphire W. and hold that Family Court Act §§ 1017 and 1027(d) do not permit supervision of a nonrespondent parent who has been caring for the child, in the absence of a court-ordered removal of the child. We further concur with the Second Department that, “[c]onsidering the intrusive and potentially traumatic impact of ACS involvement in a family’s life, the disproportionate involvement of Black and Hispanic children in the child welfare system cannot be ignored” … . Matter of R.A. (A.R.), 2025 NY Slip Op 04295, First Dept 7-24-25

Practice Point: The Administration for Children’s Services’ (ACS’) authority to supervise a nonrespondent mother who was abused by respondent father in the child’s presence is only triggered if and when the court orders the removal of the child from the home, not the case here. All agreed mother was “a good mother,” yet she was subjected to 15 announced and unannounced searches of her home and inspections of her child over the course of six months.

 

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THE JUDGE SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO SET A SCHEDULE FOR MOTHER’S PARENTAL ACCESS TO THE PARTIES IN THIS CUSTODY ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, held the judge should not have left it up to mother and the non-family-member (Pierce) who brought the custody petition to determine mother’s parental access:

… [A[ “court may not delegate its authority to determine parental access to either a parent or a child” … . Here, the Family Court improperly delegated the determination of the mother’s parental access to the mother and Pierce. The record reflects that the relationship between Pierce and the mother has deteriorated and reveals troubling interactions between the parties, including one alleged instance where Pierce prevented the mother from visiting the child during a scheduled visitation. Accordingly, we remit the matter … to expeditiously establish both a supervisor for the mother’s parental access with the child as well as a specific schedule for the mother’s parental access in accordance with the best interests of the child that shall be observed by both the mother and Pierce … . Matter of Pierce v Joyner, 2025 NY Slip Op 04250, Second Dept 7-23-25

Practice Point: The court cannot delegate its authority to set up a parental-access schedule to the parties in a custody action.

 

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PLAINTIFF’S FAILURE TO COMPLY WITH A STATUS CONFERENCE ORDER REQUIRING THE FILING OF AN APPLICATION FOR AN ORDER OF REFERENCE DID NOT JUSTIFY THE SUA SPONTE DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff’s failure to comply with status conference order to file an application for an order of reference by a date certain did not warrant a sua sponte dismissal of the complaint:

“[A] court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . “Here, the plaintiff’s failure to comply with the status conference order directing it to file an application for an order of reference was not a sufficient ground upon which to direct dismissal of the complaint” … . … Supreme Court should have granted those branches of the plaintiff’s motion which were pursuant to CPLR 5015(a) to vacate the dismissal order and to restore the action to the active calendar … . Federal Natl. Mtge. Assn. v Davis, 2025 NY Slip Op 04232, Second Dept 7-23-25

Practice Point: Failure to comply with a status conference order to apply for an order of reference by a certain date does not justify a judge’s sua sponte dismissal of the complaint.

 

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EXCLUDING A SPECTATOR FROM THE TRIAL BECAUSE HE WAS SLEEPING DEPRIVED DEFENDANT OF HIS RIGHT TO A PUBLIC TRIAL; THE CONSTITUTIONAL ERROR IS NOT SUBJECT TO A HARMLESS ERROR ANALYSIS; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial, determined the judge’s excluding a spectator from defendant’s trial violated the defendant’s right to a public trial. The spectator, apparently a friend of the defendant, had been asleep during the trial. He was excluded solely on that ground:

While trial courts have “inherent discretionary power to exclude members of the public from the courtroom” … , that discretion “must be exercised only when unusual circumstances necessitate it” … . “In sum, ‘an affirmative act by the trial court excluding persons from the courtroom’ without lawful justification constitutes a violation of the defendant’s right to a public trial” … . “A violation of the right to an open trial is not subject to harmless error analysis and a per se rule of reversal irrespective of prejudice is the only realistic means to implement this important constitutional guarantee” … .

Here, after the first day of testimony had concluded and jurors had been dismissed for the day, the Supreme Court excluded a spectator from the courtroom for sleeping, which the court noted was “disrespectful” and “distracting to the jurors.” The court told the spectator … he was “excluded from this courtroom for the rest of this trial” and was “not to return” to the courtroom. * * *

The record demonstrates that the Supreme Court did not sufficiently consider whether less drastic measures could have addressed the spectator’s behavior, such as warning the spectator or requesting that the spectator alter his demeanor in the courtroom … . The court’s statement the next day that the spectator was no longer excluded from the courtroom was insufficient to remedy the court’s error. People v White, 2025 NY Slip Op 04193, Second Dept 7-16-25

Practice Point: A judge has to have a good reason for excluding a spectator from a trial. The fact that the spectator had slept during the trial was not enough. Exclusion of spectators deprives a defendant of the constitutional right to a public trial.

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HERE PLAINTIFF SUBMITTED A SUPPLEMENTAL BILL OF PARTICULARS, NOT AN AMENDED BILL OF PARTICULARS, MORE THAN 30 DAYS BEFORE TRIAL; DEFENDANTS SHOULD HAVE ACCEPTED IT; LEAVE OF COURT WAS NOT REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined plaintiff was entitled to compel defendants to accept a second supplemental bill of particulars after plaintiff had surgery on her injured shoulder:

“Pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing ‘continuing special damages and disabilities,’ without leave of the court at any time, but not less than 30 days prior to trial, if it alleges ‘no new cause of action’ or claims no ‘new injury'” (… quoting CPLR 3043[b]). Here, contrary to the defendants’ contention, the plaintiff sought to allege continuing consequences of the injuries suffered to her left shoulder and described in the original bill of particulars, rather than new and unrelated injuries … . Since the contested bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars, and was served more than 30 days prior to trial, leave of court was not required … . Miller v Great Vegetable Farm, Inc., 2025 NY Slip Op 04170, Second Dept 7-16-25

Practice Point: Here plaintiff documented the results of surgery on her injured shoulder in a supplemental bill of particulars. Because the document addressed injuries already alleged to have been caused by the slip and fall, and not new injuries, the document was a supplemental bill of particulars, not an amended bill of particulars. As long as a supplemental bill of particulars is served more than 30 days before trial, leave of court is not required and defendant must accept it.

 

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THE JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s kidnapping first degree conviction and ordering a new trial on that count, determined the trial judge should have given the jury an instruction on unlawful imprisonment second degree as a lesser included offense. Kidnapping first degree requires restraint for more than 12 hours. There was a reasonable view of the evidence which supported the restraint was less than 12 hours:

“A defendant is entitled to a lesser included offense charge upon request when (1) it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” … . Inasmuch as there is no dispute regarding the first prong, we turn our focus to the second. In so doing, “we must view the evidence in the light most favorable to the defendant” … . “It is only where there is no possible view of the facts by which the jury could find [the defendant guilty of] a lesser [included offense] that [a] refusal [to submit that offense] is justified” … . In light of the evidence relied upon by defendant, as summarized in our above weight of the evidence analysis, we agree with defendant that there is a reasonable view of the evidence that he committed the lesser offense by restraining the victim, but not for more than 12 hours as required to commit the greater offense. People v Akins, 2025 NY Slip Op 04122, Third Dept 7-10-25

Practice Point: Where a reasonable view of the evidence supports a lesser included offense, it is reversible error to refuse to instruct the jury on it.

 

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CPLR 1021 DEFINES THE PROCEDURE FOR SUBSTITUTING A REPRESENTATIVE FOR A DECEASED PARTY; HERE THAT PROCEDURE WAS NOT FOLLOWED; THE JUDGE’S SUA SPONTE ORDER SUBSTITUTING THE EXECUTOR WAS A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proper procedure was not followed to substitute the executor of defendant’s estate for defendant. Therefore Supreme Court lacked any jurisdiction over the matter and did not have the power to grant defense counsel’s motion to substitute the executor:

… [T]he former counsel for the defendant purportedly moved on the defendant’s behalf, inter alia, pursuant to CPLR 3126. … Supreme Court, sua sponte, substituted Jared Pierre, as executor of the defendant’s estate, for the defendant nunc pro tunc and granted the motion purportedly made on the defendant’s behalf. The plaintiff appeals.

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a)” … . “[A]ny determination rendered without such a substitution is generally deemed a nullity” … . Further, “[t]he death of a party terminates the authority of the attorney for that person to act on his or her behalf” … .

“CPLR 1021 defines the procedural mechanisms for seeking a substitution of successor or representative parties, and for the dismissal of actions where substitutions are not timely sought” … . “A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction over the deceased party’s personal representative, and such a motion is not a mere technicality” … . Pierre v King, 2025 NY Slip Op 04028, Second Dept 7-2-25

Practice Point: The death of a party divests the court of jurisdiction over the matter. The procedure for substitution of a representative is explained in CPLR 1021 and must be followed.​

 

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CPLR 7003(1), WHICH REQUIRES A JUDGE TO FORFEIT $1000 FOR AN IMPROPER DENIAL OF HABEAS CORPUS RELIEF, IS UNCONSTITUTIONAL AS A VIOLATION OF THE COMPENSATION CLAUSE OF THE NYS CONSTITUTION AND AS A VIOLATION OF THE SEPARATION OF POWERS DOCTRINE (SECOND DEPT).

The Second Department, in a comprehensive full-fledged opinion by Justice Golia, in a matter of first impression, determined CPLR 7003(1), which requires a judge to forfeit $1000 when a petitioner’s request for habeas corpus relief is improperly denied, is unconstitutional. The statute violates the Compensation Clause of the NYS Constitution and the separation of powers doctrine:

… [W]hile CPLR 7003(c) is not a direct diminution of judicial compensation, the language of that provision explicitly “targets judges for disadvantageous treatment,” as it provides that a $1,000 forfeiture be paid personally by a judge who does not issue a writ of habeas corpus where one should have been issued … . CPLR 7003(c) is, thus, an indirect diminution of the salary of judges within the meaning of the Compensation Clause of the New York State Constitution. Accordingly, the Supreme Court properly determined that “[b]y its nature, CPLR 7003(c) singles out judges for financially adverse treatment because of their exercise of their judicial functions and does so in a manner that discriminates based on how they decide an application for a writ. To impose a forfeiture on a judge based on which way they decide an application undermines the core objective of the [C]ompensation [C]lause of protecting judicial independence.” * * *

By imposing a penalty on a judge who refuses a petitioner’s request for habeas corpus [*14]relief where such relief should have been issued, the Legislature, through CPLR 7003(c), is interfering with judicial functions by incentivizing one specific outcome, namely, issuance of the writ, because a judge only faces a penalty if he or she refuses to issue a writ. Such influence is impermissible, as “‘the mere existence of the power to interfere with or to influence the exercise of judicial functions contravenes the fundamental principles of separation of powers embodied in our State constitution and cannot be sustained'” … . Poltorak v Clarke, 2025 NY Slip Op 04496, Second Dept 7-30-25

Practice Point: CPLR 7003(1) requires a judge to forfeit $1000 for an improper denial of habeas corpus relief. The statute violates the Compensation Clause of the NYS Constitution and the separation of powers doctrine.

 

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THE SENTENCING COURT SHOULD REDACT FROM THE PRESENTENCE REPORT ANY REFERENCE TO CRIMINAL CONDUCT OF WHICH THE DEFENDANT WAS ACQUITTED (FOURTH DEPT).

The Fourth Department determined defendant’s presentence report should have been redacted to remove reference to criminal conduct of which defendant was acquitted:

We agree with defendant, however, that the court erred in failing to redact improper statements from the presentence report (PSR) because they reference criminal conduct of which defendant was acquitted … . Specifically, we agree with defendant that the inclusion in the PSR of statements regarding alleged sexual offenses by defendant involving another child, of which he was acquitted, “was inappropriate and inflammatory” … . We therefore direct County Court to redact the sentence on page 10 of the PSR referring to a statement by the victim “that there could be another victim . . . who was inappropriately touched by [defendant]”; the quotation on page 10 from an investigator stating that defendant ” ‘was having sexual intercourse with another underage female as well. High risk for children’ “; and the sentence on page 12 referring to a disclosure “that [defendant] has been sexually assaulting [the other victim] since she was nine years old” from all copies of defendant’s PSR.  People v Wilmet, 2025 NY Slip Op 03901, Fourth Dept 6-27-25

Practice Point: A presentence report should not include any references to criminal conduct of which defendant was acquitted.​

 

 

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