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THIS CASE PRESENTS THE RARE CIRCUMSTANCE WHERE DEFENDANT’S SECOND MOTION TO VACATE HIS CONVICTION SHOULD BE CONSIDERED, DESPITE THE DENIAL OF DEFENDANT’S PRIOR MOTION WHICH WAS BASED ON THE SAME GROUND, I.E., DEFENSE COUNSEL’S MISINFORMATION ABOUT WHEN DEFENDANT WOULD BE ELIGIBLE FOR PAROLE (THIRD DEPT). ​

The Third Department, reversing County Court, determined the defendant’s second motion to vacate his murder conviction (by guilty plea) based on his attorney’s erroneously informing him he would be eligible for parole haff-way through the 15-year sentence required a hearing. Defendant had made a prior motion on the same ground which was denied by another judge. The Third Department noted that ordinarily the prior motion would preclude the instant motion, but irregularities in the prior order denying the motion and the facts asserted in support of the instant motion justified giving the defendant a second chance:

… [T]he Legislature anticipated there would be times when it would be appropriate to reconsider issues previously decided on the merits (see CPL 440.10 [3] …). Doubtless those times should be rare; but, in our view, this is one of them.

Critically, the instant motion includes witness affidavits affirming that counsel assured defendant that he would be eligible for parole review as early as halfway through his minimum 15-year term of imprisonment (see CPL 440.30 [1] [a]; compare CPL 440.30 [4] [d]). Also attached is correspondence between defendant and counsel from December 2020. In one letter, defendant asks why counsel advised him that he would be eligible for early parole; counsel’s response does not address defendant’s question. Given defendant’s submissions, plus his relatively young age and inexperience with the criminal justice system at the time of his guilty plea, along with the irregularities in the June 2020 order, summary denial of defendant’s motion was an improvident exercise of discretion. Accordingly, in the exercise of our broad authority to substitute our discretion for that of County Court … , we set aside the procedural bars to relief on the issue of counsel’s alleged erroneous parole advice and remit the matter for a hearing … . People v Phelps, 2025 NY Slip Op 01680, Third Dept 3-20-25

Practice Point: Here irregularities in the order denying defendant’s first motion to vacate his conviction and the facts presented in support of defendant’s second motion on the same ground justified consideration of the second motion.​

 

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THE MOTIONS TO AMEND THE COMPLAINT AND JOIN AN ACTION SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motions to amend the complaint and to join another action should have been granted. The proposed amendment was not time-barred because the original complaint gave notice of the transactions and occurrences upon which the amendment is based. The motion to join another action should have been granted because there were common questions of law or fact and defendants would not be prejudiced:

While a proposed amendment generally is considered patently devoid of merit if it is time-barred under the applicable statute of limitations” … , here, the proposed amendment relates back to the original complaint and is deemed to have been timely interposed because the original complaint gave “notice of the transactions, occurrences, or series of transactions or occurrences” on which the claims in the proposed amended complaint were based (CPLR 203[f] …). [Defendants] failed to establish that they were prejudiced or surprised by the plaintiff’s delay in seeking leave to amend the complaint, as discovery was still ongoing at the time the plaintiff’s motion was made … , the proposed amended complaint was “premised upon the same facts, transactions, or occurrences” alleged in the original complaint … , and the proposed amendment merely elaborated on the same theory of liability alleged in the original complaint … . …

The Supreme Court also improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was pursuant to CPLR 602(a) to join Action No. 2 with Action No. 1 for purposes of trial. “Where common questions of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion” … . Here, Action No. 1 and Action No. 2 both arise from the project, concern the same parties, and involve common questions of law and fact … , and a failure to try the two actions jointly would result in a “duplication of trials, unnecessary costs and expense, and a danger of an injustice resulting from divergent decisions” … . Contrary to the contentions of KGD and OLA, the possibility of prejudice resulting from a joint trial can be mitigated by appropriate jury instructions … , and any potential prejudice is outweighed by the possibility of inconsistent verdicts if separate trials ensue … .  Great Neck Lib. v Kaeyer, Garment & Davidson Architects, P.C., 2025 NY Slip Op 01613, Second Dept 3-19-24

Practice Point: Consult this decision for the criteria for amending a complaint, including a determination whether the amendment is time-barred (it is not if the original complaint gave notice of the transactions or occurrences referenced in the amendment).

Practice Point: Consult this decision for the criteria for consolidating two actions which involve common questions of law or fact.

 

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A JUROR, AN ATTORNEY, ALLEGEDLY TOLD THE OTHER JURORS THAT THE “BEYOND A REASONABLE DOUBT” STANDARD COULD BE DISREGARDED; DEFENDANT WAS ENTITLED TO A “JUROR MISCONDUCT” HEARING IN CONNECTION WITH HIS MOTION TO SET ASIDE THE VERDICT (FIIRST DEPT). ​

The First Department, holding the matter in abeyance, determined the allegations that a juror, A.H., an attorney, told the other jurors the “beyond a reasonable doubt” standard did not apply to everything in the case necessitated an evidentiary hearing on defendant’s motion to set aside the verdict:​​

Some of the alleged conduct of juror A.H., an attorney, described in the supporting affidavits of two jurors, was an emphatic expression of the juror’s thoughts, his strong belief in defendant’s guilt, his understanding of the court’s instructions, his personal antipathy to the defendant, and, to the extent it was incorrect, his understanding of the law, none of which constitutes juror misconduct under CPL 330.30(2) … . However, the affidavit of one juror (E.A.) affirmed that A.H. “told us that we did not have to apply the beyond a reasonable doubt standard for everything in the case.” The other juror (S.D.) affirmed that A.H. averred, without any stated exception, “that the proof did not have to be beyond a reasonable doubt.”

Considering these attestations regarding A.H.’s alleged direction to the jury members to disregard the court’s instruction concerning the burden of proof, defendant was entitled to an evidentiary hearing on his motion to set aside the verdict. We hold the appeal in abeyance for that purpose. People v Hernandez, 2025 NY Slip Op 01589, Ct App 3-18-25

Practice Point: Consult this decision for some insight into what is, and what is not, juror-misconduct, here in the context of a juror, an attorney, telling the other jurors the “beyond a reasonable doubt” standard may be disregarded.

 

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WHERE THERE IS A FACTUAL DISPUTE ON A MATERIAL ISSUE WHICH MUST BE RESOLVED BEFORE THE COURT CAN DECIDE A LEGAL ISSUE, THE FACTUAL DISPUTE MUST BE RESOLVED IN A HEARING BEFORE THE COURT CAN DECIDE THE LEGAL ISSUE; WHETHER THE RECORD GIVES RISE TO A FACTUAL DISPUTE ON A MATERIAL ISSUE IS A QUESTION OF LAW (CT APP).

The Court of Appeals, reversing the Appellate Division, determined a factual dispute about whether an attorney (Santamarina) validly waived personal jurisdiction on behalf of defendant Koukis required a hearing:

Supreme Court decided Mr. Koukis’s motion without a factual hearing, holding that Mr. Santamarina lacked authority to act on Mr. Koukis’s behalf and vacating his waiver of personal jurisdiction and service defenses. But Supreme Court concluded that personal jurisdiction existed over Mr. Koukis pursuant to CPLR 302 (a) (2). It therefore set the matter down for a traverse hearing to determine if service on Mr. Koukis of the summons and complaint was proper.

Before the traverse hearing occurred, the Appellate Division modified the order of Supreme Court by vacating the default judgment and granting Mr. Koukis’s motion to dismiss based upon a lack of jurisdiction. The Appellate Division held that “there was no basis to conclude that Koukis authorized Santamarina to appear and waive all jurisdictional defenses on his behalf” … . Additionally, the majority departed from Supreme Court in its analysis of CPLR 302 (a) (2), concluding that the court did not have personal jurisdiction and dismissing the complaint in its entirety … . Two Justices partially dissented on the ground that Supreme Court should have held a hearing to determine whether Mr. Santamarina had the authority to represent Mr. Koukis … . We now reverse on the basis that there is a material factual dispute as to whether Mr. Koukis authorized or ratified the waiver of personal jurisdiction

[Plaintiff] was entitled to a factual hearing to determine whether Mr. Santamarina validly appeared on Mr. Koukis’s behalf and waived personal jurisdiction. Where the record shows a “factual dispute on a material point which must be resolved before the court can decide the legal issue,” the court may not grant the motion without first holding a hearing (… see … CPLR 2218). Whether the record gives rise to such a factual dispute is a question of law … .Gibson, Dunn & Crutcher LLP v Koukis, 2025 NY Slip Op 01565, CtApp 3-18-25

Practice Point: Here there was a factual dispute on a material issue which had to be decided before the related legal question could be answered. Therefore a hearing was required to resolve the factual issue before the court addressed the legal issue. Whether a factual dispute on a material issue exists raises a question of law.

 

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DEFENDANT’S GUILTY PLEA WAS NOT VOLUNTARY BECAUSE HE WAS NOT INFORMED OF THE MANDATORY FINES FOR THE VEHICLE AND TRAFFIC LAW OFFENSES; AN EXCEPTION TO THE PRESERVATION REQUIREMENT APPLIED; AN APPEAL WAIVER DOES NOT PRECLUDE ARGUING THE PLEA WAS INVOLUNTARY (CT APP).

The Court of Appeals, reversing the Appellate Division, determined defendant’s guilty plea was not voluntary because he was not informed of the mandatory fines for the Vehicle and Traffic Law offenses. Although the error was not preserved, the “no actual or practical ability to object” preservation exception was invoked: An appeal waiver does not preclude the defendant from arguing the plea was involuntary:

An exception to the preservation requirement exists where, as here, a defendant had “no actual or practical ability to object” prior to the imposition of the fines by the sentencing court … . Further, a valid appeal waiver does not preclude a defendant from challenging a plea as involuntary, where the court fails to advise a defendant of a component of their sentence before it is imposed … .

Supreme Court erred in failing to inform defendant at the time of his plea that the sentences for two of the offenses to which he was pleading guilty included mandatory fines (see Vehicle and Traffic Law § 511 [3] [b]; Vehicle and Traffic Law § 1193 [1] [a]) The failure to “ensure that . . . defendant, before pleading guilty, ha[d] a full understanding of what the plea connotes and its consequences” … , requires vacatur of the plea. People v Padilla-Zuniga, 2025 NY Slip Op 01563, CtApp 3-18-25

Practice Point: The failure to inform the defendant of mandatory fines renders the guilty plea involuntary.

Practice Point: Here the “no actual or practical ability to object” exception to the preservation requirement applied.

Practice Point: An appeal waiver does not preclude the argument that the plea was involuntarily entered.

 

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THE DEFENDANT’S MAXIMUM SENTENCE WAS 20 YEARS BUT THE JUDGE REPEATEDLY TOLD DEFENDANT HE WAS FACING 45 YEARS; THE MAJORITY DETERMINED THE GUILTY PLEA WAS NOT VOLUNTARILY ENTERED; THE DISSENT ARGUED THE ISSUE WAS NOT PRESERVED (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a two-justice dissent, determined defendant’s guilty plea was not entered voluntarily, knowingly and intelligently because the judge repeatedly told the defendant he was facing 45 years in prison when his sentence was capped at 20. The dissent argued the error was not preserved:

The issue on appeal is whether defendant Marquese Scott’s guilty plea was knowing, voluntary, and intelligent. Supreme Court made an egregious error during the plea proceedings, repeatedly asserting that defendant faced up to 45 years’ incarceration if found guilty after trial, when his maximum exposure was statutorily capped at 20 years. As we have long recognized, inaccurate information regarding a sentence is a significant factor in determining whether a plea was voluntary. Given defendant’s young age, his inexperience facing serious charges with the risk of consecutive sentencing, and the vast disparity between the plea offer of 6 to 8 years and the court’s erroneous assertion that he faced 25 years more than the law allowed, we hold that defendant’s guilty plea was not the result of a free and informed choice. Accordingly, defendant’s plea cannot stand. * * *

From the dissent:

With only narrow exceptions, we have unequivocally required a defendant to preserve a challenge to the voluntariness of their plea by making “a motion to withdraw the plea under CPL 220.60 (3) or a motion to vacate the judgment of conviction under CPL 440.10” … . People v Scott, 2025 NY Slip Op 01562, CtApp 3-18-25

Practice Point: A guilty plea entered after the defendant is erroneously told he is facing 45 years in prison when the sentence is statutorily capped at 20 is not voluntary.​

Practice Point: Here the dissent argued the majority should not have carved out a new exception to the preservation requirement to consider the merits of this case.

 

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FATHER’S RIGHT TO FILE FUTURE PETITIONS FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN CONDITIONED ON MENTAL HEALTH TREATMENT; RATHER THE TREATMENT SHOULD BE A CONDITION FOR SUPERVISED VISITATION (FOURTH DEPT).

The Fourth Department noted that father’s right to file future modification-of-custody petitions should not have been conditioned upon mental health treatment:

“It is well established that a court lacks authority to condition any future application for modification of a parent’s [custody or] visitation on [that parent’s] participation in mental health treatment” … . We therefore modify the order … by striking the provision requiring that the father submit proof that he is engaged in and compliant with mental health counseling with a psychiatrist as a prerequisite to filing a modification petition and providing instead that the father comply with that condition as a component of supervised visitation … . Matter of Shakema R. v Mesha B., 2025 NY Slip Op 01512, Fourth Dept 3-14-25

Practice Point: It is not OK for a judge to condition a party’s ability to file future petitions for modification of custody upon mental health treatment. However treatment can be made a condition for supervised visitation.

 

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IN REINSTATING THE ACTION AFTER VACATING THE ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANTS’, THE SECOND DEPARTMENT EXPLAINED WHAT SHOULD BE ALLEGED IN A COMPLAINT FOR LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate the order granting defendants’ motion for summary judgment in this Labor Law 240(1), 241(6) and 200 action should have been granted. Plaintiff fell through the roof of the building he was working on. Apparently plaintiff failed to answer the summary judgment motion because of law office failure. In reinstating the action, the Second Department noted that the causes of action had been adequately pled as follows:​

“‘Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks'” … . “‘To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff’s injuries'” … . Here, the plaintiff alleged that his fall through the roof was the result of an elevation-related hazard caused by the failure to keep necessary safety devices in place and identified the defendants as the owners of the premises. …

“‘Labor Law § 241(6) imposes on owners and contractors a nondelegable duty to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed'” … . “‘To establish liability under Labor Law § 241(6), a plaintiff or a claimant must demonstrate that his [or her] injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case'” … . Here, the plaintiff alleged that he was employed in an area where construction was being performed and that his injuries were proximately caused by the failure to comply with applicable statutes, ordinances, rules, and regulations. ….

“‘Labor Law § 200 essentially codifies landowners’ and general contractors’ common-law duty to maintain a safe workplace'” … . “‘Where a plaintiff’s claims implicate the means and methods of the work, an owner or contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work'” … . Here, the plaintiff alleged that the defendants failed to provide a safe place to work and that the defendants controlled and supervised the work at issue. Bayron Chay Mo v Ultra Dimension Place, LLC, 2025 NY Slip Op 01338, Second Dept 3-12-25

Practice Point: Consult this decision for a clear explanation of what should be alleged in the complaint for Labor Law 240(1), 241(6) and 200 causes of action.

 

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WHERE A DEFENDANT IS AN “ELIGIBLE YOUTH,” THE SENTENCING COURT MUST CONSIDER YOUTHFUL OFFENDER TREATMENT; IF THE RECORD IS SILENT ON THE ISSUE, THE SENTENCE WILL BE VACATED AND THE MATTER REMITTED (SECOND DEPT).

The Second Department, vacating defendant’s sentence and remitting the matter, determined defendant was an “eligible youth” but the record was silent about whether the court considered youthful offender treatment:

“Criminal Procedure Law § 720.20(1) requires a court to make a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forego it as part of a plea bargain” … . “Where a defendant is an eligible youth, the determination of whether to afford him or her youthful offender treatment must be explicitly made on the record” … . Here, even though the defendant was an eligible youth, the record does not demonstrate that the Supreme Court made such a determination. Accordingly, the defendant’s sentence must be vacated and the matter remitted to the Supreme Court, Queens County, for resentencing after a determination as to whether the defendant should be afforded youthful offender treatment … . People v Suckoo, 2025 NY Slip Op 01396, Second Dept 3-12-25

Practice Point: If the record does not reflect that the court considered youthful offender treatment for an “eligible youth,” the sentence will be vacated.​

 

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A DEFENDANT’S RIGHT TO BE PERSONALLY PRESENT FOR SENTENCING EXTENDS TO RESENTENCING AND TO THE AMENDMENT OF A SENTENCE (SECOND DEPT). ​

The Second Department, reversing Supreme Court and remitting the matter, determined defendant had a right to be present at his resentencing:

The defendant was not present at the resentencing proceeding in June 2023 because he was incarcerated in Florida. The Supreme Court nonetheless resentenced the defendant to the same sentence as had been previously imposed.

“A defendant has a fundamental right to be personally present at the time sentence is pronounced” … , which “extends to resentencing or to the amendment of a sentence” … . Although the defendant had already completed serving the incarceration portion of his sentence as of resentencing, the defendant had not completed the postrelease supervision component of his sentence, for which the Supreme Court could have resentenced the defendant to a minimum period of 3 years and a maximum period of 10 years (see Penal Law § 70.45[2-a][a]). The defendant was not present at the resentencing proceeding, and the record is devoid of any indication that he waived his right to be present … . People v Allen, 2025 NY Slip Op 01381, Second Dept 3-12-25

Practice Point: Absent a waiver, a defendant has the right to be personally presented at a resentencing.

 

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