Judges – Page 9 – New York Appellate Digest

Constitutional Law, Correction Law, Criminal Law, Judges, Sex Offender Registration Act (SORA)

THE JUDGE’S ASSESSING SORA RISK-LEVEL POINTS NOT REQUESTED BY THE PEOPLE VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW; THE JUDGE FAILED TO MAKE THE FINDINGS REQUIRED BY THE CORRECTION LAW FOR AN UPWARD DEPARTURE; DETERMINATION VACATED (FOURTH DEPT).

The Fourth Department, reversing the SORA risk level determination, held that the judge violated defendant’s right to due process of law by assessing points that were not requested by the People, and violated the Correction Law requirements for imposing an upward departure:

Although defendant failed to object to the assessment of points … when the court rendered its oral decision, we “review defendant’s contention in the interest of justice in light of the substantial infringement upon [her] due process and statutory rights” … .

… [T]he court failed to comply with the requirement of Correction Law § 168-n (3) that it set forth the findings of fact and conclusions of law upon which it based its decision to grant the People’s request for an upward departure … . In its decision, the court merely concluded, under the first part of the relevant three-part analysis, that the People had identified “aggravating . . . circumstances . . . of a kind or to a degree not adequately taken into account by the guidelines” … . At no time in its decision did the court render a determination on the other two parts of the relevant analysis. Rather, after identifying the aggravating circumstances, the court conclusorily granted the People’s application for an upward departure, without ever “weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant’s dangerousness and risk of sexual recidivism” … . People v Ridley, 2025 NY Slip Op 05599, Fourth Dept 10-10-25

Practice Point: If a judge assesses SORA risk-level points not requested by the People, the defendant’s due process rights are violated.

Practice Point: In granting an upward departure in a SORA risk-level-assessment proceeding, the judge must make the findings required by the Correction Law.

October 10, 2025

Family Law, Judges

ENGAGING IN COUNSELING SHOULD NOT BE A CONDITION OF VISITATION; THE COURT SHOULD NOT DELEGATE ITS AUTHORITY TO DETERMINE IF AND WHEN VISITATION SHOULD OCCUR TO A COUNSELOR (FOURTH DEPT).

The Fourth Department, modifying Family Court, determined father should not have been directed to engage in counseling as a condition of visitation Family Court shouild not have delegated its authority to the counselor to determine when visitation should resume:

It is well settled that ” ‘[a]lthough a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation’ ” … . In addition, a court may not give counselors “the authority to determine if and when visitation would occur” … . Matter of Johnson v Pritchard, 2025 NY Slip Op 05398, Fourth Dept 10-3-25

Practice Point: Engaging in counseling should not be a condition of visitation.

Practice Point: Family Court should not delegate its authority to decide if and when visitation should occur to a counselor.

October 3, 2025

Civil Procedure, Contract Law, Judges

BASED UPON AN INTERPRETATION OF THE CLASS-ACTION SETTLEMENT AGREEMENT WHICH DID NOT SPECIFICALLY ADDRESS THE ISSUE, SUPREME COURT PROPERLY RULED THAT UNCLAIMED SETTLEMENT FUNDS CAN BE REDISTRIBUTED TO THE OTHER CLASS MEMBERS, REJECTING DEFENDANTS’ ARGUMENT THAT ANY UNCLAIMED FUNDS SHOULD BE RETURNED TO THEM (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined Supreme Court properly ruled that unclaimed checks payable to class members as part of a class action settlement can be redistributed to the other class members. The ruling was based upon an interpretation of the settlement agreement which did not specifically address the “unclaimed checks” issue. Defendants argued the unclaimed funds should be returned to them. The opinion is too fact-specific and detailed to fairly summarize here. O’Brien v Sagbolt LLC, 2025 NY Slip Op 05280, Third Dept 10-2-25

October 2, 2025

Criminal Law, Judges

AS PART OF A PLEA BARGAIN, THE JUDGE PROMISED TO ORDER DEFENDANT TO BE ENROLLED IN THE COMPREHENSIVE ALCOHOL AND SUBSTANCE ABUSE TREATMENT (CASAT) PROGRAM; BECAUSE DEFENDANT WAS NOT ELIGIBLE FOR THE PROGRAM, HIS MOTION TO VACATE HIS GUILTY PLEA SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his guilty plea should have been granted. The judge’s promise to order defendant to be enrolled in the CASAT (comprehensive alcohol and substance abuse treatment) program was central to defendant’s plea bargain. The program was not available to the defendant because he was not convicted of a drug-related offense:

… County Court promised to order him to be enrolled in CASAT, a promise that could not be fulfilled because CASAT is only available to individuals convicted of drug-related offenses (see Penal Law § 60.04 [6]). We agree. “A guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … . Defendant was not enrolled in CASAT as he was not statutorily eligible for participation (see Penal Law § 60.04 [6] …), so the promise cannot be honored. Moreover, the record reflects that the mandate for CASAT enrollment was “part and parcel of defendant’s plea agreement” … . Thus, defendant is entitled to vacatur of his guilty plea … . People v Robinson, 2025 NY Slip Op 05125, Third Dept 9-25-25

Practice Point: Here defendant was promised, as part of a plea bargain, enrollment in the CASAT program. It turned out he was not eligible for the program. Because the program was “part and parcel of defendant’s plea agreement,” defendant was entitled to vacatur of his guilty plea.

September 25, 2025

Attorneys, Evidence, Family Law, Judges

AN ATTORNEY SHOULD BE DISQUALIFIED UNDER THE ADVOCATE-WITNESS RULE WHEN THE ATTORNEY’S TESTIMONY IS NECESSARY TO PROVE ISSUES IN DISPUTE, NOT THE CASE HERE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the husband’s attorney, Smith, should not have been disqualified on the ground he would be called as a witness at trial. The appellate division determined Smith’s testimony was not relevant to the financial issues in the divorce action. Therefore Smith should not have been disqualified on the basis that his testimony would be necessary at trial:

The advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, but are not binding authority for courts in determining whether a party’s attorney should be disqualified during litigation … . “Disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants. Disqualification denies a party’s right to representation by the attorney of its choice” … . In considering whether to disqualify counsel, the court must consider a litigant’s right to select his own counsel and the fairness and effect of disqualification in the particular factual setting … . Whether to disqualify an attorney rests in the sound discretion of the trial court … . However, an attorney should be disqualified only when his or her testimony is necessary to prove the issues in dispute … . The party seeking or supporting disqualification need not show that counsel’s continued representation would prejudice his or her client where the court finds that counsel’s testimony is necessary on his or her client’s behalf … . De Luca v De Luca, 2025 NY Slip Op 05146, First Dept 9-25-25

Practice Point: Here the proposed testimony by the attorney was not necessary to prove issues in dispute. Therefore the attorney should not have been disqualified.

September 25, 2025

Civil Procedure, Evidence, Judges, Negligence

THE ISSUES OF NEGLIGENCE AND PROXIMATE CAUSE WERE NOT INTERTWINED; THE VERDICT FINDING DEFENDANT NEGLIGENT BUT THAT THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY SHOULD NOT HAVE BEEN SET ASIDE; IN RESPONSE TO A JURY NOTE, THE JUDGE PROPERLY TOLD THEM THEY COULD FIND THAT THE ACCIDENT DID NOT HAPPEN (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined the motion to set aside the verdict finding the defendant negligent but that the negligence was not the proximate cause of the accident should not have been set aside. The plaintiff alleged repair to the steering mechanism of his van was negligently done, that he suddenly lost the ability to steer the van and it crashed into a concrete barrier which was parallel to the roadway. The evidence was such that the jury could have found the accident did not happen in the way alleged by the plaintiff. The damage to the van did not appear to be consistent with the accident as described by plaintiff. When the jury sent a note asking whether they could find that the accident didn’t happen, the trial judge properly told them they could so find:

The narrow question we must address to determine this appeal is whether the Supreme Court properly, in effect, granted those branches of the plaintiff’s motion which were pursuant to CPLR 4404(a) to set aside so much of the jury verdict as, upon finding that the defendants were negligent, found that such negligence was not a substantial factor in causing injury to the plaintiff … . We answer this question in the negative, holding that the court erred by, in effect, granting those branches of the plaintiff’s motion where, as here, issues of negligence and proximate cause are not inextricably intertwined as a result of there being a rational view of the evidence that the plaintiff’s accident did not occur as claimed. Additionally, this appeal provides the opportunity to state our view that, in a personal injury action where there were questions about whether the alleged injury-producing event actually occurred as claimed by the plaintiff here, it was not error for the court to respond to a jury note by instructing that the jury could consider whether the alleged accident occurred. * * *

If, as the Supreme Court concluded in this instance, the jury’s deliberation involved an uncomplicated determination of whether the defendants had negligently installed the pitman arm of the plaintiff’s van, which, in turn, resulted in the plaintiff’s loss of steering and the accident as described, then the jury’s finding of negligence without a finding of proximate cause would be inconsistent. But the trial evidence was not so uncomplicated as to be subject to only one view of the events. Here, viewing the evidence in the light most favorable to the defendants, as we must in these instances, there was a valid line of reasoning and permissible inferences upon which the jury could parse the alleged negligent repair from the alleged proximate cause and determine that while the defendants were negligent, they were not a proximate cause of the plaintiff’s claimed accident … . Krohn v Schultz Ford Lincoln, Inc., 2025 NY Slip Op 05072, Second Dept 9-24-25

Practice Point: Here the jury concluded the defendant’s repair of plaintiff’s van was negligent, but they also concluded the negligence was not the proximate cause of the accident. That verdict should not have been set aside. The evidence was such that the jury could have found that the accident as described by the plaintiff didn’t happen. The judge properly instructed them in response to a note that they could so find.

September 24, 2025

Civil Procedure, Evidence, Judges, Negligence

DEFENDANT AND A WITNESS SAID THE LIGHT WAS RED, PLAINTIFF SAID THE LIGHT WAS GREEN, SUMMARY JUDGMENT IS PRECLUDED, CREDIBILTY CANNOT BE CONSIDERED (FIRST DEPT).

The First Department, reversing Supreme Court in this intersection bicycle-vehicle accident case, reminds us that credibility plays no role in a summary judgment ruling. Plaintiff, the bicyclist, alleged he entered the intersection with a green light. Defendant and a witness alleged plaintiff entered the intersection against a red light. The conflicting evidence required denial of defendants’ motion for summary judgment:

The parties’ conflicting versions of how the accident occurred preclude summary judgment … . It is well settled that a “court’s role in deciding a motion for summary judgment is issue finding, not issue determination. . . . Moreover, [i]t is not the court’s function on a motion for summary judgment to assess credibility” … . Plaintiff’s version of events “is not incredible as a matter of law, and the different versions of the facts submitted by the parties raise[ ] credibility questions for a jury to resolve” … . Wachtel v Alan Joel Communications, Inc., 2025 NY Slip Op 05053, First Dept 9-23-25

Practice Point: Credibility plays no role at the summary judgment stage.

September 23, 2025

Attorneys, Criminal Law, Evidence, Judges

DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RENEW THE MOTION TO DISMISS THE INDICTMENT WHEN ADDITIONAL GRAND JURY TESTIMONY WAS RELEASED TO THE DEFENSE BECAUSE THE JUDGE HAD REVIEWED THE ENTIRE GRAND JURY MINUTES BEFORE DENYING THE MOTION; TWO-JUSTICE DISSENT ARGUED THE MOTION COURT WOULD HAVE BENEFITTED FROM ANOTHER ARGUMENT BASED ON THE NEWLY RELEASED EVIDENCE (FIRST DEPT).

The First Department, affirming defendant’s conviction over a two-justice dissent, determined defense counsel was not ineffective for failing to renew the defense motion to dismiss the indictment after additional grand jury testimony was released. The majority concluded there was no new evidence to support a motion to renew because the judge reviewed all the grand jury testimony before denying the motion to dismiss. The dissenters argued there was insufficient evidence defendant shared the intent of the shooter and the motion court would have benefitted from another argument where defense counsel raised the newly released grand jury evidence:

“There can be no denial of effective assistance of counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success” … . Defendant cannot demonstrate that a motion to renew would have had any likelihood of success because defendant had previously moved to dismiss the indictment and the court had denied the motion after conducting an in camera review of the grand jury minutes, which included the witness’s grand jury testimony that was subsequently provided to defendant’s counsel. Thus, the court had already determined that the evidence presented before the grand jury, including the witness’s testimony, established a legally sufficient prima facie case.

Moreover, a motion for renewal “must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made available to the court” … . Although the grand jury minutes were not available to defendant’s counsel at the time the motion to dismiss was filed, the court conducted a review of the complete grand jury minutes and then denied dismissal of the indictment. Consequently, there were no additional material facts upon which defendant’s counsel could have based a motion to renew, as the witness’s grand jury testimony was already known to the court in its entirety. Therefore, defendant’s counsel’s failure to file such a motion was insufficient to render his performance ineffective under both the state and federal standards … . People v Williams, 2025 NY Slip Op 05016, First Dept 9-18-25

Practice Point: Here the majority determined a motion to renew the motion to dismiss the indictment based on grand jury testimony released after the motion argument had little chance of success because the judge had reviewed all the grand jury evidence before denying the motion. The dissenters argued the judge would have benefitted from a second argument based on the newly released testimony, and therefore defense counsel was ineffective for failing move to renew.

September 18, 2025

Attorneys, Civil Procedure, Evidence, Judges, Negligence

DEFENSE COUNSEL’S REMARKS ALLEGING PLAINTIFF AND HER ATTORNEY FABRICATED EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE DENIED PLAINTIFF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s verdict in this sidewalk slip and fall case, determined defense counsel’s remarks in the opening and summation, alleging that the plaintiff and her lawyer, fabricated the account of where she fell, deprived plaintiff of a fair trial:

… [D]uring his opening statement, the defendant’s attorney made improper remarks accusing the plaintiff’s attorney of assisting the plaintiff with fabricating her account of where she fell, stating, among other things, that after the plaintiff told her attorney what street she fell on, “they went out to look for the worst spot on the street and they found it.” The defendant’s attorney further stated that the location of the fall claimed by the plaintiff was “lawyer-created fantasy” … . Similarly, on summation, the defendant’s attorney improperly stated that the plaintiff “changed her testimony based upon something her lawyer said to her,” and “although ‘perjury’ might be a little of a harsh word . . . she certainly testified willfully falsely” … . In addition, the defendant’s attorney improperly injected his own beliefs on summation, stating, “I truly don’t believe [the accident] happened here” and, after accusing the plaintiff of testifying falsely, stating, “I felt bad for [the defendant]. I felt bad for the whole system” … . Moreover, the defendant’s attorney inappropriately encouraged the jurors to speculate that the plaintiff declined to call an investigator as a witness at trial because the investigator would have testified unfavorably to the plaintiff … . Further, the defendant’s attorney improperly appealed to the passions of the jurors by stating that “[e]verything [the defendant has] worked for for his entire life is at risk on this trial” and that “[the plaintiff] wants to take my client’s property or money” … . Under the circumstances of this case, “‘the comments of the [defendant’s] counsel . . . were not isolated, were inflammatory, and were unduly prejudicial'” and “‘so tainted the proceedings as to have deprived [the plaintiff] . . . of a fair trial'” … . Windham v Campoverde, 2025 NY Slip Op 04939, Second Dept 9-10-25

Practice Point: Here counsel’s remarks in the opening and summation irreparably tainted the proceedings requiring a new trial.

September 10, 2025

Civil Procedure, Evidence, Judges, Landlord-Tenant, Negligence

THE JUDGE IN THIS SIDEWALK SLIP AND FALL CASE FAILED TO ADEQUATELY EXPLAIN TO THE JURY THE DIFFERENT DUTIES OWED BY THE TENANT AND THE OWNER OF THE BUILDING ABUTTING THE SIDEWALK; THE MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED; IN ADDITION, THE SECOND DEPARTMENT HELD DAMAGE AWARDS FOR PLAINTIFF’S INJURED ANKLE WERE EXCESSIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to set aside the verdict in this slip and fall case should have been granted. The defendants are the owner and tenant in the building abutting the allegedly defective sidewalk where plaintiff fell. The judge’s charge to the jury did not adequately explain how defendants’ duties differed as tenant and landowner. The Second Department also held the damage awards were excessive:

… Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability in the interest of justice and for a new trial on the issue of liability. In charging the jury, the court failed to differentiate between White Castle [tenant] and Asaro [landowner], and failed to identify how their duties differed as tenant and as landowner, respectively. Thus, the court did not “adequately convey[ ] the sum and substance of the applicable law to be charged” … . Due to the possibility that this conflation may have prejudiced either defendant or both defendants, each defendant is entitled to a new trial on the issue of liability against it … . Rendon v White Castle Sys., Inc., 2025 NY Slip Op 04925, Second Dept 9-10-25

Practice Point: Here the jury instructions did not clearly explain the different duties owed by a tenant versus a landowner with respect to a defective sidewalk abutting the building. The inadequate instructions required that the plaintiff’s verdict in this slip and fall case be set aside.