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THE RECORD IS SILENT ABOUT THE REASON FOR DEFENDANT’S PERIODIC ABSENCE FROM THE TRIAL; WHERE THERE IS NO EVIDENCE A DEFENDANT’S ABSENCE WAS DELIBERATE, CONDUCTING THE TRIAL IN DEFENDANT’S ABSENCE IS A “MODE OF PROCEEDINGS” ERROR REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that conducting the trial in the defendant’s absence was a “mode of proceedings” error which need not be preserved for appeal. If it is clear from the record that a defendant’s absence from the trial was deliberate, there is no error. But here the record was silent about the reason for defendant’s periodic absence:

Because defendant initially appeared for trial, the court was required to determine that his absence was deliberate in order to find that he had forfeited his right to be present … . In making such a determination, a court should “inquire[ ] into the surrounding circumstances” and “recite[ ] on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate” … . Even if the court fails to recite those facts and reasons on the record, no error will be found so long as the court found the absence to be deliberate and the record contains sufficient facts to support that determination, such as where the court granted a brief adjournment to attempt to locate the defendant to no avail … .

Here, the court proceeded in defendant’s absence without making a finding on the record that defendant’s absence was deliberate, without stating facts and reasons that would support a finding of deliberateness, and without granting an adjournment or taking other steps to locate defendant. Under these circumstances, the court committed reversible error and a new trial is required … . People v Taft, 2025 NY Slip Op 02685, Fourth Dept 5-2-25

Practice Point: Where, as here, a defendant is periodically absent from the trial a “mode of proceedings” error has been committed unless the record demonstrates defendant’s absence was a deliberate choice on defendant’s part. Here the record was silent about the reason for defendant’s absence requiring reversal.

 

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ALTHOUGH FATHER IS INCARCERATED FOR ASSAULTING MOTHER WHEN SHE WAS SEVEN MONTHS PREGNANT, FATHER IS ENTITLED TO A HEARING ON WHETHER VISITATION WITH THE CHILD, WHICH NEED NOT INCLUDE CONTACT VISITATION, IS IN THE BEST INTERESTS OF THE CHILD; IT IS THE MOTHER’S BURDEN TO DEMONSTRATE VISITATION WOULD BE HARMFUL (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the incarcerated father was entitled to a hearing on whether visitation would be in the best interests of the child. Father was convicted of assaulting mother when mother was seven months pregnant. Family Court had granted mother’s summary judgment motion precluding father’s contact until the child turns 18. The Third Department found that summary judgment in the absence of a hearing was inappropriate:

… [W]e agree with the father’s contention that a hearing was required regarding the issue of visitation. Plainly stated, we do not find that, given the specific circumstances of this case, denying the father any contact with the child until the child’s 18th birthday was appropriate on a summary judgment motion … . This is especially so given that “visitation . . . need not always include contact visitation at the prison” … . As such, the father is entitled to a hearing to determine what, if any, visitation is in the best interests of the child. By way of reminder, at this hearing, it is not the father’s burden to demonstrate that visitation is in the child’s best interests, but rather it is the mother, as the party opposing visitation, who has the burden of demonstrating, by a preponderance of the evidence, “that visitation with [the father] would, under all of the circumstances, be harmful to the child[‘s] welfare or contrary to [her] best interests” … . This includes a consideration of whether updates, photographs and/or letters may be appropriate and in the best interests of the child … . Matter of Jaime T. v Ryan U., 2025 NY Slip Op 02638, Third Dept 5-1-25

Practice Point: Once again it is Family Court’s failure to hold a hearing which results in reversal. Here the incarcerated father is entitled to a hearing on whether visitation, which need not include contact visitation, would be in the best interests of the child. At the hearing, it is mother’s burden to demonstration visitation would be harmful to the child.

 

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THE TRIAL PROOF COULD BE INTERPRETED TO SUPPORT AN INTENT TO CAUSE SERIOUS PHYSICAL INJURY (ASSAULT SECOND) OR AN INTENT TO CAUSE PHYSICAL INJURY (ASSAULT THIRD); DEFENDANT’S REQUEST THAT THE JURY BE INSTRUCTED ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THAT COUNT (THIRD DEPT).

The Third Department, ordering an new trial on the assault second count, determined defendant’s request that the jury be instructed on assault third as a lesser included offense should have been granted:

… County Court erred in refusing [defendant’s]  request to charge assault in the third degree as a lesser included offense of assault in the second degree. Assault in the second degree is committed when a person acts “[w]ith intent to cause serious physical injury to another person [and] causes such injury to such person or to a third person” … ; assault in the third degree, in contrast, is committed when a person acts “[w]ith intent to cause physical injury to another person [and] causes such injury to such person or to a third person” … . There is no dispute that assault in the third degree as defined in Penal Law § 120.00 (1) is a lesser included offense of assault in the second degree as defined in Penal Law § 120.05 (1), as a person could intend and cause physical injury to a victim while not intending or causing serious physical injury … . The trial proof here left little doubt that defendant began by attempting to discipline the victim but that things soon escalated to the point where he was trying to injure her, including by picking her up by her throat and holding her against a wall for a few minutes, allowing her to fall to the floor and then slapping her. This proof permitted the finding that defendant intended to cause a serious physical injury which “create[d] a substantial risk of death, or . . . serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ,” and such an injury resulted when the victim fell to the floor and broke her tooth … .

… [I]t was unclear whether defendant anticipated that the conscious victim would fall when he released her, and there was conflicting testimony as to whether he threw her to the floor with enough force to break her tooth or she simply took a bad fall after he let her drop. The victim’s treating dentist further conceded in his testimony that a tooth could accidentally break and that he had seen such injuries result from incidents as minor as “biting down on forks wrong.” When viewed in the light most favorable to defendant, this proof could allow “a jury [to] reasonably conclude that defendant intended and caused ‘physical injury’ to the victim” as opposed to serious physical injury … . People v Hooper, 2025 NY Slip Op 02623, Third Dept 5-1-25

Practice Point: There is no question that Assault third is a lesser included offense of Assault second. Here, the trial proof could be interpreted to support an intent to cause serious physical injury (Assault second) or an intent to cause physical injury (Assault third). Therefore defendant’s request for a jury instruction on Assault third should have been granted. A new trial was ordered on that count.

 

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DEFENDANT WAS NOT GIVEN A REASONABLE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA; MATTER REMITTED FOR THAT PURPOSE AND A REPORT TO THE APPELLATE COURT (SECOND DEPT).

The Second Department, remitting the matter and holding the appeal, determined the judge should have conducted an inquiry when defendant stated he wished to withdraw his guilty plea. The defendant did not have a reasonable opportunity to present his reasons:

“When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rest[s] largely in the discretion of the Judge to whom the motion is made and a hearing will be granted only in rare instances” … . “[O]ften a limited interrogation by the court will suffice” … . “[W]hen a motion ‘is patently insufficient on its face, a court may simply deny the motion without making any inquiry'” … . Nevertheless, “[t]he defendant should be afforded reasonable opportunity to present his [or her] contentions and the court should be enabled to make an informed determination” … .

Here, the defendant was not afforded a reasonable opportunity to present his contentions regarding his application to withdraw his plea of guilty and, consequently, the court was not able to make an informed determination of that application … . Accordingly, the matter must be remitted to the County Court, Nassau County, for further proceedings on the defendant’s application to withdraw his plea of guilty, and thereafter a report to this Court limited to the County Court’s findings with respect to the application and whether the defendant established his entitlement to the withdrawal of his plea of guilty. People v Nesbitt, 2025 NY Slip Op 02611, Second Dept 4-30-25

Practice Point: A defendant must be afforded a “reasonable opportunity” to explain any request to withdraw a guilty plea. The appellate court can hold the appeal and remit the case to afford the defendant that opportunity.

 

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WHETHER FAMILY COURT HAS SUBJECT MATTER JURISDICTION OVER THIS FAMILY OFFENSE PROCEEDING DEPENDS ON WHETHER THERE EXISTS AN “INTIMATE RELATIONSHIP” BETWEEN THE CHILD AND THE RESPONDENT, THE PARAMOUR OF PETITIONER’S FORMER HUSBAND; BEFORE THE COURT CAN RULE ON THE JURISDICTION ISSUE A HEARING TO DETERMINE WHETHER THERE IS AN “INTIMATE RELATIONSHIP” IS REQUIRED; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have held a hearing before ruling it did not have subject matter jurisdiction in this family offense proceeding. The proceeding was against respondent, the paramour of petitioner’s former husband. Whether Family Court has jurisdiction depends on whether the respondent is or has been in an “intimate relationship” with petitioner’s child:

“Beyond expressly excluding from the definition of ‘intimate relationship’ a ‘casual acquaintance’ and ‘ordinary fraternization between two individuals in business or social contexts'” … , “the [L]egislature left it to the courts to determine, on a case-by-case basis, what qualifies as an ‘intimate relationship’ within the meaning of Family Court Act § 812(1)(e)” … . The factors that a court may consider while making such a determination are “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … . “[T]he determination as to whether persons are or have been in an ‘intimate relationship’ within the meaning of Family Court Act § 812(1)(e) is a fact-specific determination which may require a hearing” … .

Here, in light of the parties’ conflicting allegations as to whether there was an “intimate relationship” between the child and the respondent within the meaning of Family Court Act § 812(1)(e), the Family Court, prior to determining whether it had subject matter jurisdiction, should have conducted a hearing on that issue … . Matter of De Phillips v Perez, 2025 NY Slip Op 02588, Second Dept 4-30-25

Practice Point: Family Court can have subject matter jurisdiction over a family offense petition against a person who is not a family member but has an “intimate relationship” with the child. Here Family Court should not have found it did not have subject matter jurisdiction without first holding a hearing to determine whether there was an “intimate relationship” between the respondent and petitioner’s child.​

 

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PLAINTIFF FELL 15 TO 20 FEET SUFFERING A FRACTURED RIB AND A FRACTURED FEMUR WHICH REQUIRED AN OPEN REDUCTION AND INTERNAL FIXATION SURGERY; THE VERDICT AWARDING $1.5 MILLION FOR PAST PAIN AND SUFFERING, $2.5 MILLION FOR FUTURE PAIN AND SUFFERING, AND $800,000 FOR FUTURE MEDICAL EXPENSES SHOULD NOT HAVE BEEN SET ASIDE AS EXCESSIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the jury verdict as excessive should not have been granted:

The plaintiff was injured when, while standing on a beam performing demolition work, a heating, ventilation, and air conditioning duct fell and struck him, causing him to fall approximately 15 to 20 feet to the floor. As a result of the accident, the plaintiff suffered, inter alia, a fractured rib and a fractured femur that required open reduction internal fixation surgery. A metal rod and screws were inserted into the plaintiff’s left leg. The plaintiff later underwent a surgical procedure to remove one of the screws. Furthermore, as a result of the accident, the plaintiff developed problems with both of his knees and his spine, requiring arthroscopic surgery on each knee and a laminotomy. The plaintiff walks with a limp, has limited motion of the hip and knees, and has developed arthritis that will worsen over time. Since the accident, the plaintiff has experienced constant pain despite having been administered numerous injections, including trigger-point injections and transforaminal injections, and having been prescribed several medications, including opioids. Further, the evidence demonstrated that the plaintiff will continue to experience pain and will require future medical treatment, including pain management and, likely, a spinal fusion.

The jury awarded the plaintiff damages in the principal sums of $1,500,000 for past pain and suffering, $2,500,000 for future pain and suffering over a period of 35 years, and $800,000 for future medical expenses over a period of 35 years. Thereafter, the defendants third-party plaintiffs and the third-party defendant separately moved, among other things, pursuant to CPLR 4404(a) to set aside, as excessive, the jury verdict on the issue of damages for past pain and suffering, future pain and suffering, and future medical expenses. In an order dated June 8, 2020, the Supreme Court granted those branches of the separate motions to the extent of directing a new trial on those categories of damages, unless the plaintiff stipulated to reduce the damages awards to the principal sums of $800,000 for past pain and suffering, $1,000,000 for future pain and suffering, and $400,000 for future medical expenses. …

* * * … [C]onsidering the nature and extent of the injuries sustained by the plaintiff, the damages awards for past pain and suffering, future pain and suffering, and future medical expenses, as awarded by the jury, were appropriate and did not deviate materially from what would be reasonable compensation … . Aguilar v Graham Terrace, LLC, 2025 NY Slip Op 02564, Second Dept 4-30-25

Practice Point: A jury’s damages award for past and future pain and suffering and future medical expenses should not be set aside unless the award is demonstrated to “deviate materially from what would be considered reasonable compensation,” not the case here.

 

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FAMILY COURT, AFTER A NONJURY TRIAL, AWARDED SOLE CUSTODY TO FATHER WHO RESIDES IN FLORIDA; THE CHILDREN APPEALED; THE SECOND DEPARTMENT REVERSED AND AWARDED SOLE CUSTODY TO MOTHER, IN PART BECAUSE FAMILY COURT DID NOT CONSIDER THE WISHES OF THE CHILDREN AGES 12 AND 15 (SECOND DEPT).

The Second Department, in an appeal by the children, reversing Family Court’s order issued after a nonjury trial, determined the record did not support the award of sole custody to plaintiff father who resides in Florida and who indicated during the proceedings he was not seeking residential custody of the children. The Second Department awarded sole custody to defendant mother:

“The court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child” … . “In determining an initial petition for child custody, the totality of the circumstances, includes, but is not limited to, (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent’s relative fitness, including his or her ability to guide the child, provide for the child’s overall well being, and foster the child’s relationship with the noncustodial parent; and (5) the child’s desires” … . “Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and therefore, deference is accorded to the trial court’s findings in this regard” … . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record” … .

Here, the Supreme Court’s determination to award sole legal and residential custody of the children to the plaintiff lacks a sound and substantial basis in the record. The plaintiff, who resides in Florida, represented during the proceedings that he was not seeking residential custody of the children. Moreover, while strict application of the factors relevant to relocation petitions … is not required in the context of an initial custody determination, the record does not indicate the court fully considered the impact of moving the children away from the defendant, and the only home they have known, to live with the plaintiff in Florida … . In addition, under the circumstances presented, the court failed to give sufficient weight to the expressed preference of the children, who were 12 and 15 years old, respectively, as of the conclusion of the trial, to reside with the defendant … . Joseph P. A. v Martha A., 2025 NY Slip Op 02562, Second Dept 4-30-25

Practice Point: Here the appellate court reversed Family Court which had awarded sole custody to father after a nonjury trial. It appears that the main basis for the reversal was Family Court’s failure to consider the wishes of the children who were 12 and 15. The children appealed Family Court’s order.

 

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MOTHER’S ALLEGATIONS OF CHANGES IN CIRCUMSTANCES WERE SUFFICIENT TO WARRANT A HEARING ON HER CUSTODY PETITION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s custody petition should not have been summarily dismissed without a hearing:

“A hearing is not automatically required whenever a parent seeks modification of a custody [or visitation] order” … . Rather, “[t]he petitioner must make a sufficient evidentiary showing of a change in circumstances to require a hearing on the issue whether the existing custody [and visitation] order should be modified” … . “In order to survive a motion to dismiss and warrant a hearing, a petition seeking to modify a prior order of custody and visitation must contain factual allegations of a change in circumstances warranting modification to ensure the best interests of the child” … . “When faced with such a motion, ‘the court must give the pleading a liberal construction, accept the facts alleged therein as true, accord the nonmoving party the benefit of every favorable inference, and determine only whether the facts fit within a cognizable legal theory’ ” … .

… The mother alleged that the father had repeatedly and consistently neglected to exercise his right to supervised visitation and had not seen or spoken with the children in over two years … .

… The mother further alleged that, subsequent to entry of the prior order, the older child newly disclosed that, in addition to the previously known sexual abuse to which he and the younger child had been subjected by their paternal uncle at the father’s home, the father too had sexually abused him.

… [T]he mother adequately alleged a change in circumstances based on information—which she received directly from child protective services personnel from the county where the father resides—that the father and his paramour had engaged in conduct that led to the removal of the father’s other children from his care … . Matter of Catherine M.C. v Matthew P.C., 2025 NY Slip Op 02480, Fourth Dept 4-25-25

Practice Point: The most common basis for a Family-Court reversal is the failure to hold a hearing.

 

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THE JUDGE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING THE MANDATORY “SEARCHING INQUIRY;” NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, ordering a new trial, determined defendant’s request to proceed pro se was summarily denied without the required “searching inquiry:”

It is well established that a defendant in a criminal case may invoke the right to proceed pro se provided that “(1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … . Here, the record establishes that defendant requested to represent himself before the start of trial, stating: “I would like to go pro se, and I would like to bring something to the [c]ourt’s attention if I may, your Honor.” The court initially ignored the request, but defense counsel raised the issue twice more, causing the court to tell defendant: “We are not going to address the issue of pro se. You are here with [defense counsel],” whom the court described as “one of the most experienced defense attorneys in town.” Given that the court “recognized defendant as having unequivocally requested to proceed pro se,” it was then required to conduct a “searching inquiry to ensure that . . . defendant’s waiver [of the right to counsel was] knowing, intelligent, and voluntary” … . People v Taylor, 2025 NY Slip Op 02473, Fourth Dept 4-25-25

Practice Point: Once a judge recognizes a defendant has unequivocally requested to represent himself, the judge is required to make a “searching inquiry” to ensure defendant’s waiver of counsel is knowing, intelligent and voluntary. The failure to conduct the inquiry requires reversal.

 

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HERE THE EVIDENCE WAS PURELY CIRCUMSTANTIAL; DEFENDANT’S REQUEST FOR A CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THE MURDER AND ATTEMPTED MURDER CHARGES (FOURTH DEPT). ​

The Fourth Department, ordering a new trial on the murder and attempted murder charges, determined the judge should have given the circumstantial-evidence jury instruction:

“[A] trial court must grant a defendant’s request for a circumstantial evidence charge when the proof of the defendant’s guilt rests solely on circumstantial evidence . . . By contrast, where there is both direct and circumstantial evidence of the defendant’s guilt, such a charge need not be given” … .

The People argue that certain statements made by defendant provided some direct evidence of defendant’s guilt of those charges. A defendant’s “statement[s are] direct evidence only if [they] constitute a relevant admission of guilt” … . Here, we conclude that the statements identified by the People were not admissions of guilt; rather, because they “merely includ[ed] inculpatory acts from which a jury may or may not infer guilt, the statement[s were] circumstantial and not direct evidence” … . The People thus failed to present ” ‘both direct and circumstantial evidence of . . . defendant’s guilt’ ” that would have negated the need for a circumstantial evidence charge … . People v Rodriguez, 2025 NY Slip Op 02454, Fourth Dept 4-25-25

Practice Point: Where the evidence against a defendant is both circumstantial and direct, a request for a circumstantial-evidence jury instruction is properly denied. Where the evidence is purely circumstantial, the request must be granted.​

Practice Point: A defendant’s statements are direct evidence only if they constitute an admission of guilt. Where, as here, the statements include inculpatory acts from which guilt can be inferred the statements constitute circumstantial evidence.

 

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