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IN THESE TWO DISTINCT CASES, THE DEFENDANTS CHALLENGED THE CONSENT-TO-SEARCH CONDITION OF THEIR PROBATION; IN “BRAZEAL” THE COURT HELD THE CONDITION WAS NOT WARRANTED BY DEFENDANT’S CRIMINAL HISTORY; IN “LORA” THE COURT REFUSED TO CONSIDER THE ARGUMENT BECAUSE IT WAS NOT RAISED BEFORE THE SENTENCING COURT (CT APP).

​The Court of Appeals, reviewing two decisions, with multiple concurring and dissenting opinions, determined (1) in People v Brazeal the probation condition allowing searches by probation officers was deemed inappropriate given defendant’s criminal history, and (2) in People v Lora the defendant made the same challenge to the consent-to-search probation condition, but since the issue was not preserved, merits were not reached:

We conclude that the sentencing court abused its discretion in imposing the consent-to-search condition on Brazeal. Although his conviction was for a crime of violence, at no point was Brazeal shown to otherwise possess firearms or illegal weapons, and the knife used in his crime was an ordinary kitchen knife. The Appellate Division referenced his “history of violence” … , but that characterization overstates the defendant’s relatively remote criminal history. He had a previous conviction for property destruction in Las Vegas, a harassment conviction with “physical contact” in the Bronx, and a youthful offender adjudication for assault in Yonkers, the most recent of which was almost a decade before the present offense. The 2007 youthful offender adjudication is the only other incident that references the use of an unspecified “weapon/instrument,” and only the 2007 and 2009 proceedings included assault charges. None of Brazeal’s arrests in Georgia resulted in further prosecution apart from an outstanding warrant for failure to appear. Aside from these facts, the record reflects no basis for the imposition of the condition. Brazeal has not been assessed as being in need of alcohol or substance abuse treatment, the People concede that substance abuse is not implicated in his case, and his admission of occasional marijuana use in the past does not support further supervision. On this record, the sentencing court abused its discretion by imposing a condition that was not “individually tailored in relation to the offense[ ]” or to Brazeal’s “rehabilitation” … .

Because she did not object to the consent-to-search condition before the sentencing court, Lora’s statutory and constitutional challenges are unpreserved for our review … . People v Brazeal, 2026 NY Slip Op 03910, CtApp 6-23-26

Practice Point: To appeal a consent-to-search condition of probation (to the Court of Appeals), the issue must be preserved by raising it in the sentencing court.

 

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DEFENSE COUNSEL PURSUED A REASONABLE ALTERNATIVE STRATEGY IN MOVING TO SUPPRESS DEFENDANT’S STATEMENTS THAT DID NOT REQUIRE AN INVESTIGATION INTO DEFENDANT’S MENTAL HEALTH AND SUBSTANCE ABUSE; THEREFORE DEFENSE COUNSEL’S PURPORTED FAILURE TO INVESTIGATE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissenting opinion, determined defense counsel’s purported failure to investigate defendant’s mental health and substance abuse history in order to challenge the voluntariness of defendant’s statements to police did not constitute ineffective assistance of counsel. Counsel’s decision to employ an alternative strategy was reasonable:

Defendant’s assigned counsel later moved to suppress defendant’s statements. At a pretrial hearing, counsel argued that defendant provided those statements while operating under a reasonable belief that he would be given immunity in exchange for his information, and therefore the statements were involuntary. Counsel supported that argument with a variety of evidence, including, among other things, defendant’s refusal to offer any statements until he could speak with an assistant district attorney (ADA), an unrecorded conversation with an ADA, and a note in the police file in defendant’s handwriting stating that he would need immunity and payment in exchange for his information. Counsel also relied upon defendant’s Miranda waiver form, on which he crossed out “defendant” and wrote in “C.I.,” for confidential informant. Defendant also testified at the suppression hearing that he had been offered immunity by the ADA during the unrecorded conversation.  * * *

In 2019, while his direct appeal was still pending, defendant moved to vacate the judgment pursuant to CPL 440.10. He argued that his trial counsel was ineffective for failing to investigate his history of mental health disorders and substance abuse. The court ordered a hearing, at which defendant’s trial counsel testified. Counsel asserted that although he was aware of defendant’s mental health and substance abuse history, defendant “had given [counsel] such a clear picture” of what happened that “was supported by documentary evidence” and that in counsel’s “50 years of practicing [he had] never had a case where [he had] seen, or known of a case where [he had] seen that a person” who shared defendant’s mental health diagnosis successfully suppress a statement on that ground. People v Fernandez, 2026 NY Slip Op 03915, CtApp 6-23-26

Practice Point: Although defendant’s mental health and substance abuse history may have been used to argue his statements to police were not voluntary, defense counsel felt that argument would fail and pursued a reasonable alternative strategy which did not require a mental-health and substance-abuse investigation. Defense counsel was therefore not “ineffective.”

 

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THE NYS AND NYC “RIGHT TO RECORD ACTS,” WHICH GIVE CITIZENS THE RIGHT TO RECORD POLICE ACTIVITIES, DO NOT ALLOW RECORDING IN PUBLICLY ACCESSIBLE POLICE-STATION LOBBIES (CT APP).

The Court of Appeals, answering a certified question from the Second Circuit, determined that the NYS and NYC Right to Record Acts (RTRA’s), which allow citizens to record police activities, do not allow recording inside police stations:

We … do not opine as to the full scope of the RTRAs’ application or any other places where the RTRAs may apply. We reformulate the question as follows:

“Does either N.Y. Civil Rights Law § 79-p or Administrative Code of the City of New York §§ 14-189 afford individuals such as plaintiff Reyes the right to video record law enforcement activities inside the publicly accessible lobbies of police stationhouses?”

We answer that question in the negative. Reyes v City of New York, 2026 NY Slip Op 03914, CtApp 6-23-26

 

PLAINTIFF SOCIAL MEDIA PLATFORMS BROUGHT SUIT IN FEDERAL COURT CLAIMING CERTAIN PROVISIONS OF NEW YORK’S “HATEFUL CONDUCT LAW” (HCL) VIOLATE THE FIRST AMENDMENT; THE SECOND CIRCUIT CERTIFIED THREE NARROW QUESTIONS ABOUT THE MEANING AND APPLICABILITY OF THE STATUTE TO THE COURT OF APPEALS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a three-judge dissent, answering narrow certified questions from the Second Circuit, determined the meaning of certain provisions of the Hateful Conduct Law (HCL) which is codified in General Business Law section 394-ccc: The law seeks to address “hateful conduct” on social media platforms:

In response to increasing violence fueled by hateful rhetoric on social media, the legislature enacted General Business Law § 394-ccc (hereinafter the “Hateful Conduct Law” or “HCL”) with the aim of “requiring social media networks to provide and maintain mechanisms for reporting hateful conduct on their platform[s]” … . Before the law became effective, the social media network plaintiffs obtained a stay of its enforcement from the federal district court, claiming that its provisions would effectively compel them to speak out against hateful conduct and otherwise chill the publication of qualifying content in violation of the First Amendment.

In reviewing that order on appeal, the United States Court of Appeals for the Second Circuit has certified three questions to us concerning the scope of the statute. The first two questions essentially ask whether a social media network can comply with the HCL without explicitly referencing its definition of hateful conduct. Applying our ordinary canons of statutory construction, we answer those questions in the affirmative. The third certified question essentially asks whether the statute requires a social media network to respond to a user report of hateful conduct. We answer that question in the negative. Volokh v James, 2026 NY Slip Op 03913, CtApp 6-23-26

 

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THE LABOR LAW PREVAILING-WAGE PROVISIONS APPLY TO PUBLIC WORKS CONTRACTS; ANY CONTRACTUAL ATTEMPT TO SHORTEN THE STATUTE OF LIMITATIONS IS UNENFORECABLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, answering two certified questions from the Second Circuit, determined (1) the Labor Law provisions requiring that workers receive the prevailing wage for public works projects apply irrespective of the language in a contract, and (2) any provisions purporting to shorten the statute of limitation periods in public works contracts are unenforceable:

We have accepted two certified questions from the United States Court of Appeals for the Second Circuit concerning third-party beneficiary breach of contract claims to enforce the right of a public works project employee to receive a prevailing wage under the Labor Law. We hold that Labor Law § 220 makes such claims available regardless of the underlying contract’s language and that given the unique status of the constitutional and statutory right to a prevailing wage, agreements to shorten limitation periods in public works contracts are unenforceable against such claims. ​Walton v Comfort Sys. USA (Syracuse), Inc., 2026 NY Slip Op 03911, CtApp 6-23-26

 

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THE APPELLATE DIVISION ABUSED ITS DISCRETION IN DISMISSING TWO APPEALS FOR “FAILURE OF TIMELY PROSECUTION OR PERFECTION;” CRITERIA EXPLAINED (CT APP).

The Court of Appeals, without discussing the facts, determined the appellate division abused its discretion in dismissing two appeals for “failure of timely prosecution or perfection:”

We have identified as relevant factors (1) the length of the appellant’s delay; (2) the reasonableness of any excuse for the delay, including whether the appellant received clear instructions on how to pursue an appeal and whether the delay was strategic or resulted from a belated change in strategy; and (3) the specific prejudice, if any, the respondent has suffered from the delay (Perez, 23 NY3d at 99-101; Taveras, 10 NY3d at 233; People v West, 100 NY2d 23, 27-28 [2003]). Under the circumstances of these cases, including the People’s concession, the Appellate Division abused its discretion in dismissing defendants’ appeals. People v Matthews, 2026 NY Slip Op 03908, CtApp 6-18-26

Practice Point: Consult this decision for the criteria the appellate division should apply to the dismissal of an appeal for “failure of timely prosecution or perfection.”

 

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THE EQUAL RIGHTS AMENDMENT DOES NOT RENDER THE MANDATORY RETIREMENT AGES FOR JUDGES UNCONSTITUTIONAL (CT APP). ​

The Court of Appeals determined the mandatory retirement ages for judges (70 and 76) do not violate the Equal Rights Amendment (ERA) and do not constitute “age discrimination:”

Members of the judiciary in New York State have been subject to a mandatory retirement age since the adoption of our first State Constitution in 1777. In the current Constitution, article VI, § 25 (b) mandates retirement at 70 years old, with an opportunity for certain judges and justices to serve until age 76. Petitioners, former and sitting justices of the New York State Courts, contend that this provision was implicitly repealed by the Equal Rights Amendment (“ERA”) of 2024, which amended article I, § 11 to add, inter alia, age to the classes protected from discrimination in the exercise of civil rights. Petitioners argue that as a result of this alleged implicit repeal, Judiciary Law §§ 23 and 115, which together implement the constitutional mandatory retirement age cap and certification system set forth in article VI, § 25 (b), are now unconstitutional. However, we have long held that implied repeal is disfavored … . The text, purpose, and history of these constitutional provisions establish that they operate independently: article VI, § 25 (b)’s retirement mandate addresses a different constitutional matter than the ERA, and the two provisions are not antagonistic and may be harmonized. Therefore, we affirm the Appellate Division order affirming dismissal of the underlying petition. Matter of Miller v State of New York, 2026 NY Slip Op 03907, CtApp 6-18-26

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THE DOCTRINE OF EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN APPLIED TO PRECLUDE THE VILLAGE FROM RAISING THE “FAILURE TO FILE A NOTICE OF CLAIM” DEFENSE TO DEFENDANT’S COUNTERCLAIM (CT APP).

The Court of Appeals, affirming the Appellate Division’s reversal of Supreme Court, in a full-fledged opinion by Judge Halligan, over a two-judge dissent, determined the defendant-developer, FPW, in a breach-of-a-real-estate-contract action brought by the plaintiff-village, was precluded from litigating a counterclaim because it never filed a notice of claim with the village. Supreme Court had ruled the doctrine of equitable estoppel precluded the village’s “lack-of-notice-of-claim” argument because the village was aware of the facts underlying the counterclaim from the start of the lawsuit and failed to raise the defense until the statute of limitations had run. The Court of Appeals rejected the equitable-estoppel argument:

We have explained that equitable estoppel generally “is not applied against the government, as a matter of policy, because to do so could easily result in large scale public fraud” and “violate the doctrine of separation of powers” … . Thus, “[w]e have recognized that estoppel may be warranted in unusual factual situations to prevent injustice . . . but we have limited its use against government agencies to all but the rarest cases” … . * * *

… [W]e conclude that the Village did not engage in wrongful or misleading conduct warranting the application of equitable estoppel. As the Appellate Division correctly determined, participation in litigation, without more, does not constitute action calculated to mislead or discourage a party from filing a notice of claim … . That holds true here, where the Village was pressing its own breach of contract claim and therefore had every reason to participate in discovery and related court conferences, independent of FPW’s counterclaim. Moreover, the Village’s answer to the counterclaim put FPW on notice that it was raising FPW’s “fail[ure] to perform all conditions precedent” as an affirmative defense, and compliance with a notice of claim statute such as CPLR 9802 “is a condition precedent” to an action against a municipality … . Incorporated Vil. of Freeport v Freeport Plaza W., LLC, 2026 NY Slip Op 03906, CtApp 6-18-26

Practice Point: Although the equitable estoppel doctrine can very rarely be applied to a municipality, the village did nothing improper or misleading which would warrant precluding the village’s “failure to file a notice of claim” defense to defendant’s counterclaim. There was a two-judge dissent.

 

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WHEN DEFENSE COUNSEL REALIZED THE STIPULATION SHE HAD SIGNED EFFECTIVELY EQUATED POSSESSION OF THE LAPTOP WITH POSSESSION OF THE CHILD PORNOGRAPHY FOUND ON THE LAPTOP SHE MOVED FOR A MISTRIAL ARGUING SHE HAD PROVIDED INEFFECTIVE ASSISTANCE; THE APPELLATE DIVISION AND THE COURT OF APPEALS AGREED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, affirming the Appellate Division, and agreeing with defense counsel’s own trial argument that her signing the stipulation constituted ineffective assistance, determined the stipulation in this child pornography case essentially equated possession of the laptop with possession of child pornography found on the laptop. Defendant asserted that he found the laptop in the garbage and that any child pornography was placed there by someone else:

Defense counsel’s decision to sign paragraphs 4 and 5 of the stipulation … deprived the defendant of meaningful representation. On their face, paragraphs 4 and 5 may be read to eliminate the crimes’ mens rea requirements—the very elements on which the defense theory rested—contrary to the court’s instruction that to convict the defendant of possessing the CSAM [child sexual abuse material], the jury had to conclude beyond a reasonable doubt that he committed the requisite “affirmative acts.” So understood, the stipulation would have undermined the defendant’s core contention that he possessed the laptop without knowing it contained the CSAM. … [P]aragraphs 4 and 5, which provide that “whoever possessed” the videos “promoted” a sexual performance by a child “with knowledge of the character and content of the videos,” and that “whoever possessed” the images did so “knowingly,” went further than was necessary … . … [T]he record reveals no other strategic reason for agreeing to those paragraphs’ vital legal concessions. * * *

… [I]n the specific circumstances of this case, where the defendant conceded physical possession of the laptop and the images in the unallocated space were repeatedly described as “on the laptop” by the parties, the witnesses, and the stipulation itself, the stipulation could have allowed the jury to conclude that the defendant’s physical possession of the laptop equated to his knowing possession of the images in the unallocated space. As for the video counts, although defense counsel contended that the defendant had never possessed the videos at all, the theory of the People’s case was that the same person shared and downloaded both the videos and images. Thus, the stipulation’s concession as to the image counts could well have tainted the jury’s deliberations on video counts.  People v Guerra, 2026 NY Slip Op 03905, CtApp 6-18-26

Practice Point: Consult this opinion for insight into what the People must prove to demonstrate the possessor of a laptop “possesses” child pornography found on the laptop. Merely viewing is not possessing. The People must prove defendant “exercised dominion and control” over the pornography by downloading or printing it for example. Here the defendant asserted he found the laptop in the garbage and any pornography found on the laptop was not put there by him.

 

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DEFENDANT HAD REQUESTED NEW COUNSEL AND ARGUED THE JUDGE DID NOT MAKE THE PROPER INQUIRY BEFORE DENYING THE REQUEST; DEFENDANT PLED GUILTY REPRESENTED BY HIS ORIGINAL COUNSEL; THE FOURTH DEPARTMENT RULED THE DEFENDANT “ABANDONED” HIS “INVOLUNTARY PLEA” ARGUMENT BY REMAINING REPRESENTED BY THE SAME ATTORNEY AT THE TIME OF THE PLEA; THE COURT OF APPEALS RULED DEFENDANT NEVER ABANDONED THE “INVOLUNTARY PLEA” ARGUMENT AND THE LINE OF FOURTH DEPARTMENT DECISIONS TO THE CONTRARY SHOULD NOT BE FOLLOWED (CT APP).

The Court of Appeals, reversing the Appellate Division and invalidating a line of Fourth Department decisions, determined the defendant did not waive the argument that his guilty plea was not voluntarily entered. Defendant had argued the trial judge did not make the required findings after defendant requested new counsel. The Fourth Department ruled that argument was abandoned because defendant pled guilty while represented by his original defense attorney. The Court of Appeals held the defendant had never waived the “involuntary plea” argument:

The Fourth Department’s holding, the most recent in a line of cases to the same effect, is wrong for several reasons. First, as the Appellate Division acknowledged, a claim challenging the voluntariness of a plea survives even a valid appeal waiver … . A challenge to voluntariness cannot be extinguished because the same counsel about whom a defendant has complained, unsuccessfully, continued to represent the defendant at plea and sentencing. Second, in any event, these circumstances do not constitute waiver of defendant’s voluntariness claim … . Waiver “occurs when a defendant intentionally and voluntarily relinquishes or abandons a known right that would otherwise survive a guilty plea” … . Here, the fact that defendant pleaded guilty while represented by the same attorneys does not evince an intentional choice to abandon review of the voluntariness of his plea. Defendant contends that his guilty plea was an effort to mitigate the harm resulting from the court’s denial of his request for new counsel, not an abandonment of his request. To the extent that the Appellate Division relied on the fact that, during the plea colloquy, defendant did not renew his complaints about counsel, his silence does not indicate waiver. Finally, the Fourth Department’s line of cases adopting this erroneous rule originates in People v Hobart (286 AD2d 916 [4th Dept 2001]), which cited no case law or authority for its rule, nor does it explain the rule’s origins. The other Departments have not adopted that rule. People v Kelley, 2026 NY Slip Op 03904, CtApp 6-18-26

Practice Point: Here defendant requested new counsel and the request was denied. Then defendant pled guilty while represented by his original counsel. Defendant did not waive his “involuntary plea” argument by pleading guilty with his original counsel. The line of Fourth Department decisions which held a guilty plea in this context abandons defendant’s “involuntary plea” argument is no longer valid. The abandonment or waiver of an “involuntary plea” argument must be explicit.

 

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