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THE JUDGE DID NOT MAKE THE REQUIRED FINDINGS OF FACT AND CONCLUSIONS OF LAW BEFORE DETERMINING DEFENDANT’S SORA RISK-LEVEL; MATTER REMITTED (SECOND DEPT). ​

The First Department, remitting the matter, determined the judge did not make the required findings of fact and conclusions of law when designating the defendant’s risk level under SORA:

In designating a sex offender’s risk level under SORA, “[t]he court shall render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based” (Correction Law § 168-n[3]). Here, the court’s statement at the conclusion of the hearing “did not adequately set forth the findings of fact and conclusions of law on which it based its decision” to assess the points at issue on appeal and deny defendant’s motion for a downward departure … . Instead, the court simply stated: “The People have met their burden of proof of clear and convincing evidence, that 135 points were properly assessed, which corresponds to a Level 3 sex offender designation. The motion for downward departure is denied.” The court’s written order repeated those statements. Therefore, we remand the matter to Supreme Court “to specify the required findings and conclusions, based on the evidence already introduced” … . People v Tolliver, 2025 NY Slip Op 00489, First Dept 1-30-25

Practice Point: A judge’s designation of a defendant’s SORA risk level must be supported by findings of fact and conclusions of law.

 

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A MOTION FOR SUMMARY JUDGMENT MAY BE MADE ANYTIME AFTER ISSUE IS JOINED; A JUDGE CANNOT REQUIRE THE FILING OF A NOTE OF ISSUE BEFORE A SUMMARY JUDGMENT MOTION CAN BE MADE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should have have denied plaintiff’s motion for summary judgment in this rear-end collision case on the ground a note of issue had not been filed:

“CPLR 3212(a) provides that any party may move for summary judgment once issue has been joined. The court may ‘set a date after which no such motion may be made’ which must be at least 30 days after the filing of a note of issue (CPLR 3212[a]). The court has no authority to require the filing of a note of issue as a prerequisite to a motion for summary judgment, since CPLR 3212(a) clearly states that a motion for summary judgment may be made once issue has been joined” … . . Accordingly, the Supreme Court should not have denied Karen Jackson’s motion on that ground. Jackson v Islam, 2025 NY Slip Op 00438, Second Dept 1-29-25

Practice Point: A motion fore summary judgment can be made anytime after issue is joined. A judge cannot require that a note of issue be filed first.

 

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IN THIS MENTAL HYGIENE LAW ARTICLE 10 TRIAL TO DETERMINE WHETHER THE RESPONDENT, WHO HAD SERVED HIS SENTENCE FOR SEXUAL OFFENSES, REQUIRED CIVIL MANAGEMENT, HEARSAY BASED EXPERT EVIDENCE OFFERED BY THE STATE AND EVIDENCE FROM ONE OF RESPONDENT’S VICTIMS SHOULD NOT HAVE BEEN EXCLUDED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the jury’s finding that respondent did not suffer from a mental abnormality requiring civil management, determined that hearsay based expert evidence offered by the state, and evidence of violence and sexual offenses offered by one of respondent’s victims should not have been excluded:

… [T]he State’s expert should have been permitted to give hearsay basis testimony regarding a statement made to her by the respondent’s sexual abuse victim. “In article 10 trials, hearsay basis evidence is admissible if it satisfies two criteria. First, the proponent must demonstrate through evidence that the hearsay is reliable. Second, the court must determine that the probative value in helping the jury evaluate the expert’s opinion substantially outweighs its prejudicial effect” … . Here, the State established the reliability of this hearsay basis testimony since the respondent was convicted of sexual abuse in the first degree with respect to this victim … .. Moreover, the probative value of this hearsay basis testimony in helping the jury evaluate the expert’s opinion testimony substantially outweighed its prejudicial effect … .

The Supreme Court also erred in precluding a certain witness from testifying at trial regarding violence and sexual offenses that the respondent allegedly committed against her. The witness’s proposed testimony, which was not hearsay … , was relevant to the issue of whether the respondent suffered from a mental abnormality … , and the probative value of such testimony outweighed its prejudicial impact, particularly since the State’s expert expressly considered this proposed testimony in forming her opinion that the respondent suffered from sexual sadism … . Matter of State of New York v Kevin W., 2025 NY Slip Op 00455, Second Dept 1-29-25

Practice Point: Hearsay based expert evidence is admissible in a Mental Hygiene Law Article civil-management 10 trial if it is reliable and if its probative value outweighs its prejudicial effect.

 

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THE WARRANTLESS SEARCH PROBATION CONDITION WAS NOT REASONABLY RELATED TO THE UNDERLYING OFFENSES; THE APPEAL WAIVER WAS INVALID; EVEN IF THE WAIVER WERE VALID THE IMPROPER PROBATION CONDITION COULD BE CONSIDERED ON APPEAL (FIRST DEPT).

The First Department determined defendant’s waiver of appeal was invalid and the probation condition allowing warrantless searches of defendant’s home, person and vehicle was not reasonable related to the underlying offenses. The court noted that defendant could appeal the probation condition even if the appeal waiver were valid:

We find defendant’s appeal waiver invalid and unenforceable because the court did not adequately explain the nature of the appellate rights defendant was waiving, that the right to appeal was separate and distinct from the rights automatically forfeited upon a guilty plea or the limited claims that survive an appeal waiver … . The written waiver of appeal defendant signed “[was] not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … .

Although defendant’s waiver of the right to appeal was invalid, defendant’s sentence was not excessive. However, the special probation condition permitting warrantless searches of defendant’s home, person and vehicle was not reasonably related to defendant’s rehabilitation since the crime of which defendant was convicted did not involve weapons or drugs … . Contrary to the People’s contention, a defendant’s challenge to the condition of probation requiring consent to searches of their person, vehicle and place of abode by a probation officer for drugs, drug paraphernalia, weapons and contraband would have survived the appeal waiver had it not been invalid … . People v Amparo, 2025 NY Slip Op 00389, First Dept 1-23-25

Practice Point: A written appeal waiver does not cure deficiencies in the judge’s explanation of the forfeited rights.

Practice Point: A condition of probation which does not reasonably relate to the underlying offenses will be struck on appeal.

Practice Point: An improper probation condition can be appealed even if the error has not been preserved by objection.

 

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DEFENDANT SHOULD NOT HAVE BEEN ADJUDICATED A SECOND FELONY OFFENDER BASED ON A LOUISIANA CONVICTION FOR AN OFFENSE WHICH IS NOT A FELONY IN NEW YORK (SECOND DEPT). ​

The Second Department, remitting the matter for resentencing, determined the Louisiana conviction for an offense which is not a felony in New York should not have been the basis for adjudicating defendant as a second felony offender:

The defendant … contends that his adjudication as a second felony offender was illegal because the predicate Louisiana offense was not a felony under New York law. “Penal Law § 70.06 requires the imposition of enhanced sentences for those found to be predicate felons” … . An out-of-state felony conviction qualifies as a predicate felony under Penal Law § 70.06 only if it is for a crime whose elements are equivalent to those of a felony in New York … . Here, as conceded by the People, the defendant’s Louisiana conviction of simple robbery did not constitute a felony in New York for the purpose of enhanced sentencing and thus, the defendant should not have been adjudicated a second felony offender on the basis of that conviction … . People v Harris, 2025 NY Slip Op 00331, Second Dept 1-22-25

Practice Point: If an out-of-state conviction is for an offense which is not a felony in New York, an enhanced sentence as a second felony offender is not available.

 

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A FOIL REQUEST FOR A ZONING BOARD OF APPEALS (ZBA) MEMO SHOULD NOT HAVE BEEN DENIED BECAUSE PETITIONER HAD UNSUCCESSFULLY SOUGHT TO ANNUL A ZBA RULING; MATTER REMITTED FOR REVIEW OF THE MEMO TO DETERMINE WHETHER IT IS EXEMPT FROM DISCLOSURE AS INTER-AGENCY OR INTRA-AGENCY MATERIAL (SECOND DEPT).

The Second Department, reversing the denial of the petition, determined the FOIL request for a memo prepared by the Chair of the Zoning Board of Appeals (ZBA) should not have been dismissed on the ground the petitioner had unsuccessfully sought to annul a determination by the ZBA. The matter was remitted for a review of the memo by the judge to determine whether it was exempt from disclosure as inter-agency or intra-agency material:

Supreme Court erred in dismissing this proceeding on the basis that it was rendered academic by the dismissal of a separate CPLR article 78 proceeding in which the petitioner was one of the parties seeking to annul a determination by the ZBA. “FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose. The underlying premise [is] that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government” … . “[T]he standing of one who seeks access to records under [FOIL] is as a member of the public, and is neither enhanced nor restricted because he [or she] is also a litigant or potential litigant” … .

… [E]xemptions are construed “narrowly, and an agency has the burden of demonstrating that an exemption applies ‘by articulating a particularized and specific justification for denying access'” … . When relying upon an exemption, “it is the agency’s burden to demonstrate that the requested material falls squarely within a FOIL exemption” … . “To meet its burden, the party seeking exemption must present specific, persuasive evidence that the material falls within the exemption. Conclusory assertions that are not supported by any facts are insufficient” … . Here, the exemption at issue provides that each agency shall make its records available for inspection, “except that such agency may deny access to records or portions thereof that . . . are . . . intra-agency materials which are not . . . statistical or factual tabulations or data” … . … Factual data “simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making” … . Matter of Supinsky v Town of Huntington, 2025 NY Slip Op 00324, Second Dept 1-22-25

Practice Point: A FOIL request should not be denied on the ground the person making the request is, was or could be a litigant in a matter related to the request.

Practice Point: Intra-agency and inter-agency material, meaning opinions, ideas or advice exchanged as part of a deliberative process, is exempt from FOIL disclosure.

 

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RATHER THAN DISMISSING THE PETITION FOR FAILURE TO INCLUDE NECESSARY PARTIES, SUPREME COURT SHOULD HAVE DIRECTED THAT THE NECESSARY PARTIES BE SUMMONED; THE COURT’S POWER TO SUMMON NECESSARY PARTIES IS NOT AFFECTED BY THE RUNNING OF THE STATUTE OF LIMITATIONS; ONLY THE SUMMONED NECESSARY PARTIES THEMSELVES HAVE STANDING TO RAISE THE STATUTE OF LIMITATIONS DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined dismissing the complaint was not the appropriate remedy for petitioners’ failure to include necessary parties, the property owners,, in this Article 78 proceeding challenging zoning variances. Supreme Court should have directed the necessary parties be summoned. The courts power to summon necessary parties is not affected by the running of the statute of limitations. Only the necessary parties themselves have standing to raise the statute of limitations defense:

When a necessary party has not been made a party and is “subject to the jurisdiction” of the court, the proper remedy is not dismissal of the complaint or the petition, but rather for the court to direct that the necessary party be summoned ([CPLR]. § 1001[b] …). Contrary to the respondents’ contention, the Supreme Court’s ability to direct joinder of the property owners at this juncture is not affected by the purported running of the statute of limitations … . Moreover, the respondents lack standing to assert a statute of limitations defense on behalf of the property owners, who have not yet appeared in this proceeding … . Thus, the respondents failed to demonstrate that the petitioners’ failure to join the property owners as respondents warranted dismissal of the petition. Matter of Supinsky v Town of Huntington, 2025 NY Slip Op 00323, Second Dept 1-22-25

Practice Point: Here the dismissal of the petition for failure to include necessary parties was not appropriate. The court should have directed that the necessary parties be summoned.

Practice Point: A court’s power to direct that necessary parties be summoned is not affected by the running of the statute of limitations.

Practice Point: Here only the necessary parties themselves have standing to raise the stature of limitations defense.

 

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THE TRIAL JUDGE COMPLETELY BYPASSED THE BATSON PROCEDURE WHEN DEFENSE COUNSEL OBJECTED TO THE PEOPLE’S PEREMPTORY CHALLENGES TO FOUR JURORS; ALTHOUGH THE JURORS HAD BEEN EXCUSED, THE BATSON OBJECTION WAS TIMELY; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; CONVICTION HELD IN ABEYANCE AND MATTER REMITTED; TWO JUSTICE DISSENT (FIRST DEPT).

The First Department, holding the judgment of conviction in abeyance and remitting the matter, in a full-fledged opinion by Justice Pitt-Burke, over a two-justice dissent, determined (1) the appeal raising an unpreserved objection to the trial judge’s handling of a Batson challenge could be considered “in the interest of justice,” and (2) the trial judge erroneously bypassed the Batson procedure for addressing whether racial discrimination was the basis for four of the prosecution’s peremptory challenges. Defense raised the Batson challenge after the four jurors had been excused. The trial judge argued the challenge was untimely and the only remedy was a mistrial. Defense counsel argued, and the prosecution conceded, the challenge was timely, but defense counsel declined to request a mistrial. The First Department noted that remedies other than a mistrial were available—recalling the excused jurors, limiting the prosecution’s peremptory challenges, or granting the defense additional peremptory challenges, for example:

Even if we were to agree that defendant’s claim is unpreserved, we find that the trial court’s errors here were critical, and not merely a case of putting the proverbial cart before the horse … . The trial court’s actions, whether intentional or not, sidestepped the entire Batson protocol.

This Court’s recent precedent has been to exercise its interest of justice jurisdiction to correct unpreserved Batson errors where a trial court has substantially deviated from the Batson protocol. * * *

Crucially, here we are not faced with a circumstance in which the trial court erroneously concluded that defendant did not meet his prima facie burden at step one … . In fact, as noted above, the trial court took notice of the preemptory challenges implemented by the prosecution.

This is also not a circumstance in which the court deviated from the Batson protocol by improperly combining steps two and three … . Rather, we are faced with a circumstance where the trial court failed to provide any inquiry into the question of discrimination by circumventing all three steps of the Batson protocol. People v Luke, 2025 NY Slip Op 00297, First Dept 1-21-25

Practice Point: The failure to adhere to the Batson three-step procedure for addressing discrimination in jury selection can be considered by an appellate court “in the interest of justice” despite the failure to preserve the error.

Practice Point: A Batson challenge raised after the jurors had been excused, but before jury selection is complete, is timely.

Practice Point: Remedies for a Batson challenge first raised after the jurors have been excused include recalling the excused jurors, limiting the prosecution’s peremptory challenges, and granting the defense additional peremptory challenges.

 

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ALTHOUGH A JUDGE HAS THE DISCRETION TO PROHIBIT A PARTY FROM BRINGING ANY FURTHER PETITIONS FOR CUSTODY MODIFICATION, HERE FAMILY COURT ABUSED ITS DISCRETION; FATHER HAD NEVER FILED FRIVOLOUS PETITIONS OR FILED PETITIONS OUT OF ILL WILL OR SPITE (SECOND DEPT). ​

The Second Department, modifying Family Court, determined Family Court should not have prohibited father from filing any further custody modification petitions because father had not filed frivolous petitions or filed petitions out of ill will or spite:

Family Court improvidently exercised its discretion in prohibiting the father from filing any further modification petitions without the permission of the court. “While public policy generally mandates free access to the courts, a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will” … . Here, there is no basis in the record to demonstrate that the father filed frivolous petitions or filed petitions out of ill will or spite … . Matter of Freyer v Macruari, 2025 NY Slip Op 00217, Second Dept 1-15-25

Practice Point: Family Court has the discretion to prohibit a party from bringing any future custody modification petitions, it can only do so where the party has filed frivolous motions or has filed motions out of ill will or spite.

 

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HERE THE PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DISMISSED “WITH PREJUDICE” BECAUSE A FUTURE CHANGE IN CIRCUMSTANCES MAY WARRANT MODIFICATION (SECOND DEPT).

The Second Department, modifying Family Court, determined mother’s petition for a modification of custody should not have been dismissed “with prejudice” because a future change in circumstances could warrant modification:

Family Court should not have provided that its dismissal of the mother’s petitions was with prejudice. This language could create confusion as to whether the mother could seek relief based upon a change in circumstances. Therefore, we delete that provision of the order appealed from and substitute therefor a provision dismissing the petitions without prejudice … . We note that child custody and parental access orders are not entitled to res judicata effect and are subject to modification based upon a showing of a change in circumstances. Thus, a new petition may be filed where there has been a sufficient change in circumstances since the order or judgment sought to be modified was made … . Matter of Blackman v Barge, 2025 NY Slip Op 00214, Second Dept 1-15-25

Practice Point: Here the petition for modification of custody should not have been dismissed “with prejudice” because a future change in circumstances may warrant modification.

 

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