… [P]rospective jurors were identified only by numbers and the record is devoid of proof that their names were ever provided to defendant, which materially heightens the risk of prejudice … . Additionally, County Court withheld prospective jurors’ names without making any findings on the record or articulating a case-specific justification for departing from the procedure mandated by CPL 270.15, explaining only that prospective juror identities were withheld “because of confidentiality.” The record does not reflect any concern regarding juror safety, intimidation or interference, nor any circumstances that would otherwise warrant the use of an anonymous jury … . Additionally, we are not persuaded by any of the reasons suggested by the People at oral argument. We thus exercise our interest of justice jurisdiction, reverse and remit for a new trial. People v Cassell, 2026 NY Slip Op 02173, Third Dept 4-9-26

Practice Point: Here the trial judge’s failure to place on the record the reasons for empaneling an anonymous jury required reversal and a new trial in the interest of justice.

It is uncontested that defendant triggered a Batson challenge when he objected to the People’s peremptory challenge of the only two jurors who were perceived by defendant to be of the same racial group — satisfying step one … . Although the prosecutor offered a race-neutral reason for each juror at step two, County Court merged the step two and three requirements by immediately denying the objection without first allowing defense counsel to make an argument that the reasons were pretextual, thereby “squeez[ing] the process into a functional bypass of the key, final protocol [the Court of Appeals has] put in place” … . Such “practice falls short of a meaningful inquiry into the question of discrimination” … , particularly because the court’s consideration of pretext cannot be discerned from the record … .

While we are mindful of defense counsel’s failure to preserve this issue, given the magnitude of the error, we take corrective action in the interest of justice because the process here was woefully inadequate to satisfy the safeguards enshrined by Batson to every defendant (see CPL 470.15 [6] [a] …). Therefore, since the issue of pretext is a question of fact for the trial court to assess the prosecutor’s credibility against the challenged juror’s demeanor and language capabilities, which is an inquiry appellate courts are unable to address at step three, “we withhold decision and remit this case to [County] Court to enable the trial judge who presided over this matter to determine whether the race-neutral reason proffered by the People was pretextual” … . People v Duplessis, 2026 NY Slip Op 02170, Second Dept 4-9-26

Practice Point: Here the trial judge did not follow the required steps for determining a Batson challenge to the elimination of a juror by the prosecutor.

… [T]he facts alleged do not establish that the defendant launched an instrument of harm, as the defendant is not alleged to have “created or increased the risk [to the plaintiff] beyond the risk which existed even before [the defendant] entered into [its] contractual undertaking” … . The defendant’s purported negligence in failing to restore illumination to a darkened intersection amounts to, at most, a failure to act as an “instrument for good, which is insufficient to impose a duty of care” upon the defendant in the absence of contractual privity with the plaintiff … . Moreover, the contract submitted by the defendant in support of its motion conclusively demonstrated that the defendant’s contractual undertaking was “not the type of ‘comprehensive and exclusive’ property maintenance obligation” that would “entirely absorb” the Town’s duty “to maintain the premises safely” … . Weiss v Fran Corp., 2026 NY Slip Op 02147, Second Dept 4-8-26

Practice Point: Consult this decision for insight into what “launching an instrument of harm,” as opposed to “failing to act as an instrument of good,” means in the context of a duty owed by a party to a contract to an injured nonparty.

In an action to recover damages for personal injuries sustained in a bicycle accident, we are asked to determine whether the defendant, County of Suffolk, may enact legislation pursuant to the Municipal Home Rule Law that supersedes a New York State law. Specifically, the County contends that, through the enactment of Suffolk County Charter § C8-2(A)(2), it may supersede the provision of Highway Law § 139(2) that allows for an action to be maintained against a county, regardless of prior written notice, where the county had constructive notice of the alleged defective condition, pursuant to Municipal Home Rule Law § 10(1)(ii)(a)(5). We hold that Suffolk County Charter § C8-2(A)(2)(iii) contradicts Highway Law § 139(2) and, thus, the County may not, as it contends, “exercise [its] right to opt out” of the requirements of said statute. The County also contends that, in effect, even if constructive notice could be a theory of recovery in the instant action, the plaintiff bears the burden of establishing in the first instance that the County had constructive notice of the alleged defective condition. In other words, the County contends that its burden on this motion for summary judgment was only to show that it lacked prior written notice of the allegedly defective condition before the burden shifted to the plaintiff to demonstrate that the County had constructive notice of the condition. We hold, consistent with our precedent, that, when moving for summary judgment dismissing the complaint in cases invoking Highway Law § 139(2), the County must establish, prima facie, that it lacked both prior written notice and constructive notice of the alleged defective condition before the burden shifts to the plaintiff to raise a triable issue of fact in that regard or with regard to whether another exception applies. Romas v County of Suffolk, 2026 NY Slip Op 02142, Second Dept 4-8-26

Practice Point: A county charter provision which contradicts the New York State Highway Law does not supersede the provisions of the Highway Law.

In December 2022, the wife was temporarily hospitalized, which precipitated the petition … to remove her as guardian of the person and property of the incapacitated person. …

The determination “to remove a guardian of the person and property of an incapacitated person pursuant to the Mental Hygiene Law is addressed to the sound discretion of the Supreme Court” … . The “overarching concern remains the best interest of the incapacitated person” … . “A guardian may be removed pursuant to Mental Hygiene Law § 81.35 when the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just” … .

Here, the Supreme Court improvidently exercised its discretion in removing the wife as guardian of the person and property of the incapacitated person (see Mental Hygiene Law § 81.35). The wife’s temporary medical crisis that had precipitated the petition was resolved, and the petitioner failed to demonstrate that any of the wife’s actions regarding the incapacitated person’s care were a just cause for removal … . Matter of Frank M. (Zita C.–Tara M. M.), 2026 NY Slip Op 02116, Second Dept 4-8-26

Practice Point: Other than the guardian’s illness, there was no support for her removal as guardian. Her recovery, therefore, warranted dismissal of the removal petition.

“[A]n appellant who perfects an appeal by using the appendix method must file an appendix that contains all relevant portions of the record to enable the court to render an informed decision on the merits of the appeal” … . “‘The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent, including material excerpts from transcripts of testimony[,] . . . papers in connection with a motion, and critical exhibits'” … . Further, “[e]xcerpts from the transcripts ‘must not be misleading or unintelligible by reason of incompleteness or lack of surrounding context'” … . “‘An appellate court should not be subjected to the task of untangling and mastering the facts from an inadequate and incoherent appendix'” … .

Here, the plaintiffs omitted from the appendix, among other things, material excerpts from transcripts of deposition testimony and each of the defendants’ papers in connection with the separate motions which were the subject of the order appealed from … . “These omissions inhibit the court’s ability to render an informed decision on the merits of the appeal” … . Accordingly, as the plaintiffs have failed to provide this Court with an adequate appendix, we dismiss the appeal …  .Kelly-Newhouse v Chase Meadows Farm, LLC, 2026 NY Slip Op 02108, Second Dept 4-8-26

Practice Point: When an appeal is perfected by the appendix method, if the appendix does not include all of the record necessary for consideration of the issues raised in the appeal, the appeal will be dismissed.

This Court holds that the notice of claim was timely because the continuing wrong doctrine applies … . As a general rule, the continuing wrong doctrine may be “employed where there is a series of continuing wrongs and serves to toll the running of the limitations period to the date of the commission of the last wrongful act” … . The continuing wrong doctrine allows a later accrual date of a cause of action “where the harm sustained by the complaining party is not exclusively traced to the day when the original wrong was committed” … . “The distinction is between a single wrong that has continuous effects and a series of independent wrongs” … .

This Court has not previously addressed the question of whether the period within which a notice of claim may be filed is tolled where there is a continuous pattern of harassment and/or unlawful conduct in a school setting and allegedly negligent supervision of a student by school administrators charged with a duty to properly supervise their students. J.A. v City of New York, 2026 NY Slip Op 02084, Second Dept 4-8-26

Practice Point: Here in this negligent-supervision action it was alleged plaintiff-student was subjected to a pattern of abuse by other students for a period of months. In a matter of first impression, the Second Department held that incidents which occurred more than 90-days before the Notice of Claim was filed were not time-barred pursuant to the “continuing wrong” doctrine.

The in camera submissions reveal that, unlike the state registry, at least one police agency omits from its own public payroll database certain information about certified officers working undercover or in sensitive assignments to protect their safety and preserve confidentiality; again, the police agency submits information about those same officers to the state registry. This distinction in how respondent and a local law enforcement agency account for undercover officers would be evident to one who compares the department’s public payroll database to the list attributed by the state registry to that agency. Simply put, comparing the state registry to a local department’s publicly disclosed payroll database could reveal names of undercover officers that appear on the state registry but not on their employer’s redacted payroll database. Thus, respondent demonstrated that disclosure of the registry could endanger police officers who could be presumptively revealed by name as working undercover, thereby satisfying its burden to trigger the exemption under Public Officers Law § 87 (2) (f). Matter of Munson v New York State Div. of Criminal Justice Servs., 2026 NY Slip Op 02017, Third Dept 4-2-26

While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … . “People with intellectual disabilities possess diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. . . . These traits render people with intellectual disabilities uniquely vulnerable to injustice within criminal proceedings. . . . [Therefore], a court must account for [a defendant’s] diminished mental capacity in ensuring that any waiver of constitutional rights is knowing, intelligent and voluntary” … .

As defendant was twice determined to be incompetent to stand trial and had received four years of treatment before he was deemed competent to participate in his defense, County Court was aware of defendant’s intellectual disabilities. Notwithstanding the determination that defendant was competent to stand trial, the third psychiatric evaluation report cast serious doubts on defendant’s ability to enter a knowing and voluntary plea. The report indicates that on defendant’s most recent cognitive assessment he “achieved a [f]ull-[s]cale IQ of 59, indicative of abilities consistent with a [m]ild [i]ntellectual [d]isability.” Additionally, he “achieved an [a]daptive [b]ehavior [c]omposite of 68, consistent with [the] upper end of the ‘low’ range of daily living skills.” The psychologist further noted that defendant was “rather immature in his understanding of the severity of his charges and the chances that he could have significant consequences — such as jail time.” More importantly, during the evaluation, defendant repeatedly alleged that his counsel had reassured him that he will not be going to jail and, in fact, “express[ed] strongly held beliefs that he will not be sent to jail due to his personal circumstances of having a disability and being young when the offenses were allegedly committed. These beliefs are likely related to his relative youth and mental health difficulties, several of which make it difficult for [defendant] to relate to others successfully, accept social norms and expectations, or respect interpersonal boundaries. These beliefs are unlikely to change with additional education or training.”

Under these circumstances, “[a] more probing inquiry was warranted here to ensure that defendant understood the constitutional rights he was waiving, given his significant intellectual disability” … . As there is no affirmative showing on the record that defendant understood and voluntarily waived his constitutional rights when he entered his guilty plea, the judgment of County Court convicting defendant of manslaughter in the first degree and sentencing defendant thereon should be reversed, the plea vacated and the matter remitted for further proceedings … . People v Oldorff, 2026 NY Slip Op 02004, Third Dept 4-2-26

Practice Point: Where the defendant is mentally disabled and has previously been found incompetent to stand trial, before accepting a guilty plea, a probing inquiry by the judge is required to ensure the defendant understands the consequences.

People’s accomplice theory supporting counts 2 through 7 against defendant was that the video surveillance footage depicted the gun being handed off before the shooting. However, the video footage is dark and pixelated, and the brother’s body obscures part of the interaction, making it impossible to discern whether defendant and the codefendant exchanged a handgun — let alone anything — without resorting to speculation, which cannot be the basis for defendant’s guilt beyond a reasonable doubt … . Nor is there anything in the record to suggest that this codefendant was aware that defendant had a gun, as none of the witnesses testified that he was present when defendant had displayed the gun at the mother’s residence. To this point, the codefendant’s lack of knowledge combined with the testimony that he threatened to return and shoot the victim creates the reasonable inference that he already had access to a gun of his own. Accordingly, given the lack of record support to establish beyond a reasonable doubt that defendant solicited, requested, commanded, importuned or intentionally aided another individual to possess and use a firearm in commission of the offenses charged under counts 2 through 7, we reverse these convictions as against the weight of the evidence … .

Relating to the weapon charges under counts 8 and 9, multiple witnesses testified that defendant was seen with a handgun only while at the mother’s residence. However, since the evidence fails to demonstrate that the shooting was committed with the same gun, it so follows that the record also fails to establish beyond a reasonable doubt that defendant intended to use the gun he was seen with “unlawfully against another” as charged by the indictment (Penal Law § 265.03 [1] [b]). Further, although defendant did not possess the requisite gun permit and was outside of his home or place of business, the People cannot establish operability of the handgun that defendant was seen with at the mother’s residence before the shooting either … . People v Bowden, 2026 NY Slip Op 02003, Third Dept 4-2-26

Practice Point: Consult this decision for an example of convictions supported by legally sufficient evidence but against the weight of the evidence.