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WHEN THE JUDGE’S LAW CLERK SPOKE TO THE JURORS ABOUT A JURY NOTE WHILE THE JURORS WERE DELIBERATING, THE CLERK DISCUSSED CONCEPTS OF NEGLIGENCE, FAULT AND CERTAIN FACTS OF THE CASE; PLAINTIFFS’ MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial after a defense verdict, determined that the law clerk’s discussion with the jurors while they were deliberating, during which concepts of negligence and fault and certain facts were discussed, constituted interference with the deliberations and usurpation of the role of the court. The motion to set aside the verdict should have been granted:

Following the verdict, the plaintiffs moved pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the defendant on the issue of liability in the interest of justice and for a new trial. In an affirmation in support of the motion, the plaintiffs’ counsel stated that he had learned, after the jury was discharged, that when the clerk went to speak to the jurors about writing the actual question on the form, the clerk improperly communicated with the jurors in a way that went beyond the Supreme Court’s instructions. In further support of their motion, the plaintiffs submitted an affidavit from a former juror (hereinafter the first juror) who averred, among other things, that the clerk had discussed with the jurors the concepts of negligence and fault, as well as certain facts about the case. The first juror averred that the clerk was in the jury room with the jurors for approximately three to five minutes, and that following that discussion, the jurors “did not feel it [was] necessary to submit further questions to the Court.” * * *

“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . “Litigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” … . “The interest of justice thus requires a court to order a new trial where comments [have] deprived [a] party of a fair trial or unduly influenced a jury” … .

… [T]he clerk’s conduct cannot be found to be harmless. By offering opinions and/or explanations on the meaning of the legal concepts at issue in the trial, the clerk impermissibly interfered in the jury’s deliberations and usurped the role of the court to, in consultation with counsel, instruct the jurors on the law applicable to the facts. Saporito-Elliott v United Skates of Am., Inc., 2025 NY Slip Op 06886, Second Dept 12-10-25

Practice Point: The law clerk’s discussion with the deliberating jurors about concepts of negligence, fault and certain facts of the case interfered with the deliberations and usurped the role of the court. The verdict, therefore, must be set aside.

 

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ALTHOUGH THE DEFENSE IN THIS MURDER CASE WAS BASED ON THE LACK OF EVIDENCE THAT DEFENDANT WAS THE ASSAILANT, THE DEFENDANT WAS STILL ENTITLED TO A JUSTIFICATION-DEFENSE JURY-INSTRUCTION; THE DENIAL OF THE REQUEST FOR THE JUSTIFICATION-DEFENSE JURY CHARGE WAS REVERSIBLE ERROR; IN ADDITION, THE TRIAL COURT VIOLATED CVIL RIGHTS LAW 52 BY ALLOWING THE MEDIA TO RECORD TESTIMONIAL PORTIONS OF THE TRIAL (THIRD DEPT).

The Third Department, reversing defendant’s murder conviction and ordering a new trial, determined the defense request for a justification-defense jury-instruction should have been granted. The defendant and the victim got into a bar fight after defendant called the victim names. The victim, who was larger than the defendant, initially knocked defendant down. After the defendant got up, the victim was stabbed. The knife which stabbed the victim was not found It was not clear who was the initial aggressor in the fight. And there was evidence the victim may have had a knife. The Third Department noted that the court erred when it allowed audiovisual coverage of the testimonial portion of the trial (Civil Rights Law 52):

“A justification charge must be given if there is any reasonable view of the evidence, when it is considered in the light most favorable to the defendant, that would allow the jury to conclude that the defendant’s actions were justified” … . In order “for a defendant to be entitled to a justification charge with respect to the use of deadly physical force, the record must contain evidence that the defendant reasonably believed that the victim was using or was about to use deadly physical force and that the defendant could not safely retreat” … . A charge on the defense of justification remains appropriate where a defendant pursued other defense strategies at trial, including that he or she did not intend to cause the victim’s death … ,was not present or was not the assailant … .The failure to provide a justification charge under such circumstances constitutes reversible error warranting a new trial … .

Here, the evidence in the record fails to indicate who was the initial aggressor with respect to the use of physical force, but rather suggests both individuals started fighting immediately after someone — presumably defendant — yelled derogatory remarks at the victim. It was unrefuted that the victim was larger than defendant and had gained the upper hand during the fight, knocking defendant down with several blows. The further question is whether or not defendant was the initial aggressor with respect to deadly physical force … . … [T]he police recovered an open folding knife on the patio adjacent the picnic tables where the altercation began, near a pool of blood. … [A] reasoned view of the evidence is that the victim had unfolded the knife prior to being stabbed by defendant. * * * [W]e believe that there was a reasonable view of the evidence which would permit the jury to conclude that defendant’s conduct was justified … . People v Mack, 2025 NY Slip Op 06757, Third Dept 12-4-25

Practice Point: No matter what the defense strategy is, a defendant is entitled to a justification-defense jury instruction if a reasonable view of the evidence would support finding defendant’s conduct justified.

Practice Point: Civil Rights Law 52 prohibits audiovisual coverage of the testimonial portion of a criminal trial.

 

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SUPREME COURT SHOULD NOT HAVE RELIED ON THE “LOCALITY RULE” TO DISMISS THE OPINION OF PLAINTIFF’S EXPERT BECAUSE THE EXPERT PRACTICED MEDICINE IN ANOTHER STATE: WHEN AN EXPERT TESTIFIES ABOUT STANDARDS APPLICABLE THROUGHOUT THE UNITED STATES, THE LOCALITY RULE SHOULD NOT BE INVOKED (THIRD DEPT).

The Third Department, reversing Supreme Court in this medical malpractice action, determined plaintiffs’ expert affidavit was not conclusory or speculative and raised triable questions of fact. The Third Department noted that Supreme Court should not have dismissed plaintiffs’ expert’s (Grant’s) opinion on the ground Grant practiced medicine in a different state. Although the “locality rule” has not been set aside, it does not affect the validity of an opinion based on standards applicable throughout the United States:

… [W]e briefly address Supreme Court’s reliance on the fact that Grant practiced medicine in another state to ostensibly dismiss his opinions. Over 125 years ago in Pike v Honsinger (155 NY 201 [1898]), the Court of Appeals promulgated what has become known as the locality rule … . Under this rule, “the prevailing standard of care governing the conduct of medical professionals demands that a doctor exercise that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where the doctor practices” … . While this rule has not been set aside, this Court has indicated that “the development of vastly superior medical schools and postgraduate training, modern communications, the proliferation of medical journals, along with frequent seminars and conferences, have eroded the justification for th[is] rule” … . With the rise of the Internet and the attendant ease with which information is disseminated, this is even more true today. “Thus, where, as here, a medical expert proposes to testify about minimum standards applicable throughout the United States, the locality rule should not be invoked” … . Kosinski v Wladis, 2025 NY Slip Op 06772, Third Dept 12-4-25

Practice Point: In a med mal case, where an expert testifies about standards applicable throughout the United States, the “locality rule” requiring the application of local standards should no longer be invoked. Here plaintiffs’ expert’s opinion was erroneously dismissed because the expert practiced medicine in a different state.

 

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THE TRIAL JUDGE DID NOT ENSURE THAT DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL WAS KNOWING AND INTELLIGENT, CRITERIA EXPLAINED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge did not ensure the pro se defendant was aware of the risks of representing himself or the benefits of having an attorney:

… [T]he court failed to conduct the requisite inquiry before allowing the defendant to proceed pro se and the record does not reveal that the defendant was aware of the disadvantages of representing himself or the benefits of having an attorney … . A court must determine that the defendant’s waiver of the right to counsel is made competently, intelligently, and voluntarily before allowing that defendant to represent himself or herself … . To make that evaluation, the court “must undertake a ‘searching inquiry’ designed to ‘insur[e] that a defendant [is] aware of the dangers and disadvantages of proceeding without counsel'” … . The court’s inquiry “must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” … .

Here, the record does not demonstrate that the Supreme Court inquired about the defendant’s pedigree information, aside from the fact that he did not have a law license, or that the court ascertained whether the defendant was aware of the risks inherent in proceeding without a trial attorney and the benefits of having counsel represent him at trial … . The court failed to ensure that the defendant understood the potential sentence that could be imposed or the dangers and disadvantages of self-representation … . The court neither “tested defendant’s understanding of choosing self-representation nor provided a reliable basis for appellate review” … . In addition, the defendant continually engaged in disruptive or obstreperous conduct … . Under these circumstances, the defendant’s purported waiver of his right to counsel was ineffective and the defendant is entitled to a new trial … . People v Hall, 2025 NY Slip Op 06727, Second Dept 12-3-25

Practice Point: Consult this decision for insight into how a judge, faced with a defendant who wishes to represent himself, should handle the “searching Inquiry” to ensure the defendant is aware of the risks.​

 

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THE PROBATION CONDITION REQUIRING DEFENDANT TO CONSENT TO SEARCHES FOR DRUGS AND WEAPONS WAS NOT REASONABLY RELATED TO HIS REHABILITATION FOR DISORDERLY CONDUCT; THE APPEAL WAIVER WAS INVALID (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was not valid and went on to find that the probation condition requiring defendant to consent to “search of his person, vehicle, and place of abode, and the seizure of any illegal drugs, drug paraphernalia, gun/firearm, or other weapon or contraband” was not reasonably related to his rehabilitation for disorderly conduct:

… [The record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The Supreme Court’s oral explanation of the appeal waiver and its consequences was unclear and incomplete, and the written waiver cannot be relied upon to cure the deficiency because “the court did not ascertain on the record whether the defendant had read the written waiver, discussed it with his attorney, or was aware of its contents” … .

… [T]he conditions of probation “shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him [or her] to do so” (Penal Law § 65.10[1]). In addition to specific conditions enumerated in the statute, the court may, in its discretion, impose “any other conditions reasonably related to [the defendant’s] rehabilitation” … and “any other reasonable condition as the court shall determine to be necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant” … . Therefore, sentencing courts may require a defendant to consent to searches by his or her probation officer for weapons, illegal drugs, or other contraband so long as the condition is “individually tailored in relation to the offense” and “the defendant’s particular circumstances, including his or her background, history, and proclivities” … .

Here, the defendant’s only prior conviction was for disorderly conduct, a violation … , the offense at issue did not involve the use of a weapon or alcohol or other substances, and the defendant was not under the influence of any substances at the time of the offense. … [T]he Supreme Court improvidently exercised its discretion in imposing Condition No. 28, as that condition “was not individually tailored in relation to the offense, and was not, therefore, reasonably related to the defendant’s rehabilitation, or necessary to ensure that the defendant will lead a law-abiding life” … . People v Gibson, 2025 NY Slip Op 06724, Second Dept 12-3-25

Practice Point: Here the defendant was convicted of disorderly conduct which did not involve a weapon or drugs. The probation condition requiring defendant to submit to searches for drugs or weapons was struck.

 

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THE PROBATION CONDITION REQUIRING DEFENDANT TO SUPPORT DEPENDENTS AND MEET FAMILY RESPONSIBILITIES WAS NOT REASONABLY RELATED TO DEFENDANT’S REHABILITATION; DEFENDANT WAS CONVICTED OF ASSAULT (SECOND DEPT).

The Second Department, striking the probation condition requiring defendant to “support dependents and meet other family responsibilities’, determined the condition was not reasonably related to the defendant’s rehabilitation. Defendant was convicted of assault:

Pursuant to Penal Law § 65.10(1), the conditions of probation “shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or assist him [or her] to do so” … . “In Penal Law § 65.10(2), the Legislature set forth a list of conditions intended to be rehabilitative” … , including the condition that a defendant “[s]upport his [or her] dependents and meet other family responsibilities” (Penal Law § 65.10[2][f]). “The statute ‘quite clearly restricts probation conditions to those reasonably related to a defendant’s rehabilitation'” … . All enumerated probation conditions under Penal Law 65.10 must be “tailored to the particular defendant’s case” … .

Under the circumstances of this case, the Supreme Court improperly imposed Condition No. 14. This condition was “not individually tailored in relation to the offense and therefore, was not reasonably related to the defendant’s rehabilitation or necessary to insure that he will lead a law-abiding life” … . People v Aldea, 2025 NY Slip Op 06716, Second Dept 12-3-25

Practice Point: Courts are striking the probation condition requiring defendant to support dependents when it is not related to the underlying offense, assault in this case.​

 

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A CONFERENCE IN CHAMBERS ABOUT WHETHER DEFENDANT WAS FIRED BECAUSE OF THE SEX ABUSE ALLEGATIONS WHICH WERE THE SUBJECT OF THE TRIAL WAS DEEMED TO BE A MATERIAL STAGE OF THE TRIAL AT WHICH DEFENDANT SHOULD HAVE BEEN PRESENT BECAUSE DEFENDANT HAD FIRST-HAND KNOWLEDGE OF THE FACTS; THE COURT RULED EVIDENCE OF THE FIRING COULD BE PRESENTED; DEFENSE COUNSEL’S WAIVER OF DEFENDANT’S PRESENCE WAS DEEMED INSUFFICIENT; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s sex-offense convictions and ordering a new trial, determined it was error to fail to include the defendant in sidebar and chambers conferences and defense counsel’s waiver of defendant’s presence was insufficient:

… County Court did not at any point advise defendant of his right to be present during sidebar conferences. * * * … [A]fter jury selection concluded but before the trial began, a conference was held with the attorneys in chambers wherein defendant plainly was not present. During this conference, County Court heard arguments from both defense counsel and the prosecutor regarding the admissibility of certain evidence, including testimony that defendant was fired from his job at the YMCA following the [sexual abuse] incident in question. There was discussion by the attorneys and the court as to the reason for defendant’s termination and whether it was based upon the charged conduct in this case. The court ruled that evidence of defendant’s firing would be allowed. It was only after it had issued its ruling that the court acknowledged that defendant was not present, whereupon defense counsel stated, “I can waive his appearance.”

Noting that the conference was conducted for the purpose of determining the admissibility of proposed testimony, and further recognizing that defendant presumably had personal knowledge of the circumstances surrounding his firing such that he would have been able to meaningfully participate in the discussion … , we find that this conference constituted a material stage of the trial at which defendant had the right to be present. In that regard, the transcript of the conference makes apparent that County Court’s ultimate ruling on this issue turned on the precise reason for defendant’s termination, and defendant was deprived of the opportunity to assist his counsel in advocating against the admission of the subject testimony. Therefore, it cannot be said “that defendant’s presence would have been useless, or the benefit but a shadow” … . People v Benton, 2025 NY Slip Op 06559, Third Dept 11-26-25

Practice Point: Consult this decision for insight into when the failure to include defendant in a sidebar or chambers conference will be deemed reversible error.

 

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THE EVIDENCE DID NOT SUPPORT THE FINDINGS THAT MOTHER AND FATHER NEGLECTED THE NEWBORN WHO TESTED POSITIVE FOR AMPHETAMINES AND DOCTOR-PRESCRIBED SUBUTEX; THERE WAS NO EVIDENCE THE CHILD’S LOW BIRTH WEIGHT AND NEED FOR COMFORTING WAS RELATED TO AMPHETAMINES AS OPPOSED TO THE SUBUTEX; FATHER’S “HOSTILE” BEHAVIOR TOWARD PETITIONERS AND HIS REFUSAL TO SIGN A BIRTH CERTIFICATE WERE NOT VALID GROUNDS FOR A NEGLECT FINDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence did not support finding mother and father had neglected the newborn child based upon positive toxicology results for amphetamines and Subutex. Subutex had been prescribed by a doctor. Mother admitted using a methamphetamine once during the pregnancy. The evidence did not demonstrate a causal connection between the child’s low birth weight and need for extra comforting and the use of amphetamines as opposed to the doctor-prescribed Subutex:

In finding that the child had been neglected by the mother, Family Court referenced the positive toxicology results and the mother’s admission to having used “ICE.” The court also referenced that the child was born with a “low birth weight consistent with experiencing in utero drug exposure.” While the hospital records confirm the child was “small for gestational age,” there was no testimony linking this to the mother’s use of amphetamines/methamphetamines during pregnancy. The court also cited to the child exhibiting “telltale signs of drug exposure, exhibiting increased tremors when disturbed, high pitch crying and a need for extra comforting.” There was testimony from a registered nurse who cared for the child that the child had withdrawal symptoms, such as a “high-pitched, shrill cry” and “constantly need[ing] to be held and have human touch.” However, there was no testimony as to whether the child’s small birth weight and withdrawal symptoms were related to the mother’s methamphetamine use, rather than her use of Subutex, which her unrefuted testimony demonstrates was prescribed by a doctor.[FN2] In fact, the mother testified that, during her pregnancy, medical professionals informed her that using Subutex would be fine for the child, that there would not be any side effects, but there may be “some withdrawals.” * * *

We reach the same result regarding the father’s neglect finding, which was based upon the father’s behavior toward petitioner’s staff, as well as hospital staff, which was “hostile beyond what would be deemed acceptable by a reasonable and prudent standard.” The finding was also based upon the father’s refusal to sign a birth certificate or acknowledgement of paternity, “effectively abandoning the child when the mother was deemed to be an unsafe caregiver.” There is no support in the law that either of these behaviors constitute neglect, nor did petitioner “demonstrate that [the child’s] physical, mental or emotional condition was in imminent danger of being impaired” based upon these behaviors … . And finally, Family Court imputed the father with knowledge of the mother’s drug use and found that he neglected the child “by failing to exercise a minimum degree of care to prevent the mother from abusing drugs during her pregnancy.” This statement exaggerates what the testimony revealed was the extent of the mother’s drug use during pregnancy, and there simply was no evidence regarding the father’s knowledge of her use … . Matter of Raivyn BB. (Courtney BB.), 2025 NY Slip Op 06564, Third Dept 11-26-25

Practice Point: A newborn’s testing positive for amphetamines is not enough to support a neglect finding without proof the baby’s low birth weight and need for comforting was caused by amphetamines.

Practice Point: Father’s “hostile” attitude and refusal to sign the birth certificate were not valid grounds or a neglect finding.

 

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THE TRIAL JUDGE PROPERLY HANDLED A JUROR’S CLAIM THAT OTHER JURORS HAD EXHIBITED RACIAL BIAS DURING DELIBERATIONS AND PROPERLY DENIED THE DEFENSE REQUEST FOR A MISTRIAL; THERE WAS A COMPREHENSIVE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Justice Garcia, affirming the Appellate Division, over an extensive dissent, determined the trial judge properly assessed a juror’s claim that jurors exhibited racial bias during deliberations and properly denied defense counsel’s motion for a mistrial:

On appeal, the Appellate Division held that the trial judge did not abuse his discretion in denying a mistrial because the court made an “appropriate inquiry into this most serious charge” of racial bias by consulting with the parties and questioning relevant jurors, which ensured that “defendant’s right to an impartial verdict [was] properly balanced with the jury’s right to adjudicate ‘free from outside interference’ “… . In reviewing the actions of the trial judge, the Court concluded that ” ‘[i]n a probing and tactful inquiry, the [trial] court [did] evaluate the nature of what [juror No. 5] ha[d] seen, heard, or ha[d] acquired knowledge of, and assess[ed] its importance and its bearing on the case’ ” … . Two Justices dissented, asserting they were “unable to conclude on the record before us that the jury was not tainted by racial bias in their deliberations” … . … * * *

… [T]he judge was aware of the conduct of the jurors throughout the proceedings, observed the demeanor of the jurors as they were questioned on the issue of racial bias, evaluated their responses, and reasonably concluded on this record that what Juror 5 perceived as racial bias was in fact a discussion about the identification evidence, some of which, as the court noted in its post-trial decision denying the motion to set aside the verdict, may have been misinterpreted. As to the other unidentified jurors allegedly harboring some form of racial bias, defense counsel declined to request that the court question them individually (and, indeed, argued that the court should not do so), and therefore “the only asserted error preserved for appellate review was the denial of the motion for a mistrial” … . Our role is not to substitute our judgment as to the appropriate remedy for that of the trial judge. … On review of the record here, we hold that there was no abuse of discretion in the trial court’s denial of the motion for a mistrial. People v Jaylin Wiggins, 2025 NY Slip Op 06539, Ct App 11-25-25

Practice Point: Consult this opinion for insight into the issues raised by a juror’s claim that other jurors have exhibited racial bias during deliberations. Here the majority concluded the trial judge handled the inquiry properly and properly denied the defense request for a mistrial.

 

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INDIGENT PARTIES WHO ARE ASSIGNED COUNSEL IN FAMILY COURT PROCEEDINGS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL; HERE IN THESE PERMANENT-NEGLECT/TERMINATION-OF-PARENTAL-RIGHTS PROCEEDINGS, THE MAJORITY CONCLUDED MOTHER DID NOT RECEIVE EFFECTIVE ASSISTANCE; THERE WAS A THREE-JUDGE DISSENT (CT APP). ​

The Court of Appeals, reversing the Appellate Division, over a two-judge dissent, determined mother had a right to, but did not receive, effective assistance of counsel in the permanent neglect proceeding in Family Court. Assigned counsel did not speak to mother until after the fact-finding hearing had begun, was unprepared, and did not request an adjournment. During the fact-finding hearing, mother asked to represent herself and waived her right counsel. Assigned counsel remained in a standby capacity. After the fact-finding hearing, the court moved directly to the dispositional hearing. During the dispositional hearing mother’s request for representation was denied:

… [D]espite being assigned more than two months earlier, counsel had not spoken to the mother before the hearing to terminate her parental rights had already begun. We cannot determine based on this record why counsel and the mother did not speak prior to the fact-finding hearing, and the court did not inquire, so the reasons for that lack of communication are pure speculation. Even assuming … that counsel attempted to contact the mother but was unsuccessful, there is no strategic or other reasonable explanation for counsel’s failure to request an adjournment of the proceeding so that he could speak to his client before the fact-finding hearing began, especially when the mother indicated that she would not be surrendering her parental rights. Before the mother indicated that she would not, in fact, surrender her parental rights, counsel could have legitimately thought that the fact-finding hearing would not go forward. However, once it was clear that the hearing was about to commence, counsel should have requested an adjournment to speak to his client about the proceeding and its implications. Counsel’s failure to do so lacks a strategic or legitimate explanation.

Counsel also appeared unprepared, questioning whether the records that were subpoenaed were available to be reviewed and announcing that he would remain silent during the hearing, only to be admonished by the court that he was required to participate. In addition, the court, faced with a record that showed counsel’s unpreparedness to proceed due to lack of communication, continued forward with the fact-finding hearing and the dispositional hearing even after it was clear that the mother did not understand the proceedings, denied the mother’s subsequent request to be represented by counsel even though the court told the mother she could change her mind about self-representation, and gave the mother’s standby counsel only five minutes in which to explain the proceedings to her. Matter of Parker J. (Beth F.), 2025 NY Slip Op 06533, CtApp 11-25-25

Practice Point: Consult this opinion for insight into what constitutes ineffective assistance of counsel in the context of an assigned counsel representing an indigent parent in permanent neglect and termination of parental rights proceedings.

 

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