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MAJORITY: THE DEFENDANT’S WAIVER OF PARTICIPATION IN THE SHOCK INCARCERATION PROGRAM WAS NOT A COMPONENT OF THE SENTENCE AND THEREFORE THE LEGALITY OF THE SENTENCE CANNOT BE CHALLENGED BASED ON THE WAIVER; DISSENT: THE SHOCK WAIVER VIOLATES PUBLIC POLICY AND RENDERS THE SENTENCE ILLEGAL (CT APP).

The Court of Appeals affirmed the First Department’s rejection of defendant’s argument that his waiver of shock incarceration program violated public policy, over an extensive two-judge dissenting opinion. The dissent argued the waiver was against public policy rendering defendant’s sentence illegal. The majority avoided the issue entirely by holding the waiver was not part of the sentence:

Defendant’s sole contention on appeal is that the shock waiver is an illegal component of the sentence. We reject that contention on the ground that the waiver is not a component of the sentence … . * * *

From the dissent:

Shock is a six-month discipline and treatment-oriented program selectively administered to qualifying incarcerated persons selected by DOCCS when they are approximately three years away from the end of their prison sentence (see Correction Law §§ 867, 865). It has proven wildly successful on both the crime prevention and cost reduction fronts. In this case, the plea offer made by the People to Mr. Silva Santos [defendant] required him to waive participation in Shock. He told the sentencing court that he wished to be able to participate in Shock, and the court refused, citing the terms of the waiver of Shock in the plea agreement. The sole question on appeal is whether including the Shock waiver as part of the plea agreement is contrary to statutory authority or public policy. People v Santos, 2025 NY Slip Op 01008, CtApp 2-20-25

Practice Point: A defendant’s waiver of participation in the shock incarceration program is not a component of a sentence. Therefore a sentence cannot be challenged as illegal based on a defendant’s shock-waiver.

 

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THE SIX-MONTH WAITING PERIOD ASSOCIATED WITH THE REVIVAL OF OTHERWISE TIME-BARRED ACTIONS PURSUANT TO THE CHILD VICTIMS ACT IS NEITHER A STATUTE OF LIMITATIONS NOR A CONDITION PRECEDENT; THEREFORE, PURSUANT TO FEDERAL PROCEDURAL LAW, THE SECOND CIRCUIT MAY RULE THAT DEFENDANT FORFEITED THE RIGHT TO A TIMELINESS DISMISSAL OF THE FEDERAL COMPLAINT (BASED ON THE ARGUMENT PLAINTIFF’S ACTION WAS PREMATURE) BY FAILING TO TIMELY RAISE THE ISSUE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, answering a certified question from the Second Circuit, determined the six-month waiting period associated with the revival of negligence actions pursuant to the Child Victims Act, creating a two-year window for the filing of otherwise time-barred actions, was neither a statute of limitations nor a condition precedent. Therefore, under federal procedural law, the defendant’s failure to timely raise the issue in the federal proceedings forfeited his right to dismissal of the complaint on the ground plaintiff’s action was premature:

In 2019, the legislature passed the Child Victims Act (CVA), which provided that previously time-barred tort claims based on sex offenses against children could be brought within a specified time (see CPLR 214-g). As amended, the CVA provided that such a claim “is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than two years and six months after” February 14, 2019—i.e., “the effective date of this section” (id.). In other words, actions on these claims could be commenced “not earlier than” August 14, 2019 and “not later than” August 14, 2021. * * *

On April 26, 2019, plaintiff commenced a negligence action in state court against defendant, alleging that a teacher employed in one of defendant’s schools engaged in unlawful sexual conduct with her in and around 2009 and 2010, when she was a student under age 17, and that, in 2013, as a result of that conduct, the teacher pleaded guilty to rape in the third degree. * * *

On September 3, 2021, defendant moved for summary judgment dismissing the complaint on statute of limitations grounds. Defendant argued, for the first time, that the complaint must be dismissed because plaintiff commenced her action before CPLR 214-g’s period for filing claims began. Significantly, defendant filed its motion less than three weeks after the statutory period for filing claims ended, meaning that plaintiff would be unable to recommence a timely action if defendant’s motion succeeded. Jones v Cattaraugus-Little Val. Cent. Sch. Dist., 2025 NY Slip Op 01007, CtApp 2-20-25

Practice Point: Here the Court of Appeals, answering the Second Circuit’s question, determined the six-month waiting period for an otherwise time-barred action brought pursuant to the Child Victims Act was not a statute of limitations or a condition precedent. Therefore the Second Circuit was free to deny a federal defendant’s motion to dismiss the Child Victims Act complaint on the ground the action was premature.

 

THE TEN-YEAR LOOKBACK FOR A PERSISTENT VIOLENT FELONY OFFENDER DESIGNATION FOR SENTENCING PURPOSES IS TOLLED BY PRESENTENCE, AS WELL AS POST-SENTENCE, INCARCERATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive two-judge dissenting opinion, determined the ten-year lookback for a persistent violent felony offender designation is tolled by any presentence period of incarceration:

A person convicted of a violent felony offense is a “persistent violent felony offender” for sentencing purposes if that person has “two or more predicate violent felony convictions” (Penal Law § 70.08 [1] [a], [b]). Those potentially qualifying felony convictions must satisfy the timing requirement set forth in Penal Law § 70.04, namely that the sentence on the prior crime must have been imposed not more than ten years before the commission of the current felony (Penal Law § 70.04 [1] [b] [iv]). This ten-year lookback period is extended by any period of incarceration between commission of the prior felony and commission of the current felony (Penal Law § 70.04 [1] [b] [v]). Defendant challenges any extension of the ten-year lookback period using time he spent in presentence incarceration on his earliest qualifying felony conviction. We now hold that pursuant to Penal Law § 70.04, defendant’s presentence incarceration time did extend the ten-year period and therefore defendant was properly sentenced as a persistent violent felony offender. People v Hernandez, 2025 NY Slip Op 00904, CtApp 2-18-25

Practice Point: The ten-year lookback for a persistent violent felony offender designation is tolled by both presentence and post-sentence incarceration.

 

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A MUNICIPALITY OWES A CHILD IT PLACES IN FOSTER CARE A SPECIAL DUTY SUCH THAT THE MUNICIPALITY CAN BE LIABLE FOR A NEGLIGENT PLACEMENT WHICH LEADS TO FORESEEABLE HARM TO THE CHILD (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a two-judge dissenting opinion, determined a municipality owes a child placed in foster care a special duty, such that the municipality, although performing a governmental function, can be liable for negligent placement of a child:

Today we hold that municipalities owe a duty of care to the children the municipalities place in foster homes because the municipalities have assumed custody of those children. As a result, we reverse the decision of the Appellate Division.

Plaintiff, formerly a child in foster care, commenced this action pursuant to the Child Victims Act (see CPLR 214-g) against defendant Cayuga County and “Does 1-10,” who she alleged were “persons or entities with responsibilities for [p]laintiff’s safety, supervision and/or placement in foster care.” According to the complaint, the County placed plaintiff in foster care in 1974, when she was three months old. While in the foster home selected by the County, plaintiff allegedly suffered horrific abuse. Plaintiff alleged that her foster parent sexually abused her over the course of approximately seven years, beginning when she was 18 months old and continuing until she was eight years old. The foster parent allegedly coerced plaintiff’s compliance with the sexual abuse by inflicting severe physical abuse, resulting in plaintiff sustaining broken bones and a head wound. * * *

By assuming legal custody over the foster child, the applicable government official steps in as the sole legal authority responsible for determining who has daily control over the child’s life … . We thus hold that a municipality owes a duty to a foster child over whom it has assumed legal custody to guard the child from “foreseeable risks of harm” arising from the child’s placement with the municipality’s choice of foster parent … . Weisbrod-Moore v Cayuga County, 2025 NY Slip Op 00903, CtApp 2-18-25

Practice Point: A municipality generally is not liable for injury resulting from the exercise of a governmental function absent a special duty owed to the injured party. Resolving a split of authority, here the Court of Appeals held a municipality owes a special duty to a child it places in foster care.

 

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THE ETHICS COMMISSION REFORM ACT OF 2022, WHICH VESTS A COMMISSION WITH THE POWER TO INVESTIGATE AND ENFORCE ETHICS AND LOBBYING LAWS WITH RESPECT TO ELECTED OFFICIALS, EMPLOYEES OF THE LEGISLATURE, STATE OFFICERS AND THEIR EMPLOYEES, CURRENT AND FORMER CANDIDATES FOR PUBLIC OFFICE, AND LOBBYISTS (AMONG OTHERS), DOES NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, determined the Ethics Commission Reform Act of 2022 did not unconstitutionally vest the State Commission on Ethics and Lobbying in Government with executive power. The Act is not unconstitutional:

The issue on this appeal is whether, on its face, the Ethics Commission Reform Act of 2022 unconstitutionally vests the State Commission on Ethics and Lobbying in Government with executive power. Plaintiff’s principal argument is that because the Commission exercises executive power, the Governor must have power to appoint and remove the Commissioners. In New York, however, the Legislature—not the Governor—may ordinarily define the terms on which non-constitutional state officers may be appointed and removed. Moreover, the Legislature structured the Commission to address a narrow but crucial gap arising from the inherent disincentive for the Executive Branch to investigate and discipline itself, which has serious consequences for public confidence in government. The Act does not displace the Executive Branch to accomplish that goal; instead, it confers upon an independent agency power to enforce a narrow set of laws, thus mitigating the unique danger of self-regulation. The Act addresses a threat to the legitimacy of government itself with an extraordinary response. While the Act extends very close to the boundary of permissible legislation, it is not “intrinsically a constitutional affront to the separation of powers doctrine” … . * * *

The Legislature … enacted … the Ethics Commission Reform Act of 2022 (the Act), which amended Executive Law § 94 and replaced JCOPE [Judicial Commission on Public Ethics] with the Commission on Ethics and Lobbying in Government. Like JCOPE, the Commission is established in the Department of State and charged with the investigation and enforcement of the ethics and lobbying laws … . Those under the Commission’s jurisdiction include statewide elected officials; members and employees of the Legislature; certain statutorily defined state officers and employees; current and former candidates for statewide office, Senate, and Assembly; the political party chair; and current and former lobbyists and their clients … . The Commission also enforces financial disclosure requirements and reviews disclosure forms of statewide elected officials, their officers and employees and other persons subject to disclosure under Public Officers Law 73-a … . As part of its specific grant of authority under the Act, the Commission has rulemaking power to “adopt, amend and rescind any rules and regulations pertaining to” Public Officers Law § 73 (concerning official ethics), Public Officers Law § 73-a (financial disclosure), Legislative Law Article 1-a (lobbying) and Civil Service Law § 107 (political activities and contributions) (Executive Law § 94 [5] [a]). With respect to members and employees of the Legislature, the Commission’s powers are limited: the Commission may investigate such persons but must refer any potential violations of the ethics laws to the legislative ethics commission … . Cuomo v New York State Commn. on Ethics & Lobbying in Govt., 2025 NY Slip Op 00902, CtApp 2-18-25

 

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THE EVIDENCE WAS LEGALLY SUFFICIENT TO DEMONSTRATE DEFENDANT INTENDED TO STEAL TWO CANS OF RED BULL WHEN HE ENTERED THE CVS; THE DISSENT ARGUED THE EVIDENCE OF FELONY BURGLARY WAS LEGALLY INSUFFICIENT, NOTING THAT THE PROSECUTOR COULD HAVE CHARGED PETTY LARCENY OR TRESPASS, THEREBY SAVING THE STATE THE MILLION DOLLARS IT COST TO INCARCERATE THE HOMELESS, MENTALLY ILL AND DRUG-ADDICTED DEFENDANT FOR AN ATTEMPT TO STEAL ITEMS WORTH $6 (CT APP).

The Court of Appeals affirmed defendant’s burglary conviction rejecting the “legally insufficient evidence” argument. In a dissenting opinion, Judge Wilson (Judge Halligan concurring), argued the evidence was legally insufficient. Judge Wilson wrote “no evidence in the case could have led a jury to conclude beyond a reasonable doubt that Mr. Williams intended to steal the two Red Bulls” when he entered the CVS:

From the dissent:

Two cans of Red Bull cost about $6. Seven years of incarceration costs anywhere between $800,000 and $4 million, depending on the location within New York State … . For attempting to take two cans of Red Bull from a CVS, Raymond Williams was convicted of third-degree burglary, a felony, and sentenced to three and a half to seven years in prison. Mr. Williams was a perpetual petty shoplifter with substance abuse and mental health problems, so perhaps this result makes sense to someone. It does not to me.

Mr. Williams’s story is not uncommon. For much of his life, he has struggled with homelessness and drug addiction. Both factors disproportionately increase the risk of being caught up in the criminal justice system and sentenced to spend time in prison. Mr. Williams had previously been found guilty of many minor shoplifting offenses, including from other CVS stores. His problems were addressed by sentences of incarceration and probation, not treatment. * * *

Putting both psychiatric and fiscal wisdom aside, although it was within the discretion of prosecutors to charge Mr. Williams with felony burglary instead of, for example, petty larceny or trespass, the trial evidence was legally insufficient to convict him of burglary. No evidence in the case could have led a jury to conclude beyond a reasonable doubt that Mr. Williams intended to steal the two Red Bulls. I would therefore reverse his conviction. People v Williams, 2025 NY Slip Op 00901, CtApp 2-18-25

Practice Point: Consult the dissent for a strong argument for prosecutorial discretion in shoplifting cases, especially where the defendant is homeless, mentally ill and addicted to drugs. Here the defendant was sentenced to three and a half to seven years in prison for attempting to steal two cans of Red Bull from a CVS (burglary third).

 

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THE REGULATIONS WHICH PLACE A CAP ON THE NUMBER OF SERIOUSLY MENTALLY ILL PERSONS WHO CAN BE ADMITTED TO A LONG-TERM CARE FACILITY DO NOT DISCRIMINATE AGAINST PERSONS WITH DISABILITIES (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined the regulations putting a cap on the number of seriously mentally ill persons who can be accepted by a long-term care facility did not facially discriminate against persons with disabilities:

The State of New York’s Department of Health (DOH) licenses certain facilities known as “adult homes” to provide “long-term care, room, board, housekeeping, personal care and supervision to five or more adults unrelated to the operator” (Dept of Health Regs [18 NYCRR] § 485.2 [b]). Regulations promulgated by DOH provide that an adult home may not admit additional residents with serious mental illness if it has a capacity of 80 or more beds and its resident population is over 25% persons with serious mental illness … . Oceanview Home for Adults, Inc., an adult home subject to this admissions cap, claims that those regulations discriminate against persons with disabilities in violation of the Fair Housing Act Amendments of 1988 (FHAA), which extended the protections of the Fair Housing Act (FHA) to persons with disabilities (see 42 USC § 3604 [f] [1]-[2]). We conclude that plaintiff has failed to establish that the challenged regulations facially discriminate against persons with disabilities, and therefore affirm. Matter of Oceanview Home for Adults, Inc. v Zucker, 2025 NY Slip Op 00805, CtApp 2-13-25

 

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HERE AN ALLEGED PRIOR INCONSISTENT STATEMENT BY THE ROBBERY VICTIM, OFFERED AT TRIAL SOLELY FOR IMPEACHMENT, DID NOT RENDER THE EVIDENCE LEGALLY INSUFFICIENT; THE VICTIM WAS THE SOLE WITNESS TO TESTIFY ABOUT THE FACTS (CT APP). ​

The Court of Appeals, affirming defendant’s conviction. over a three-judge concurring opinion, determined that an alleged prior inconsistent statement made by the robbery victim, the only fact witness, offered at trial solely for impeachment, did not render the evidence legally insufficient. Neither the memorandum decision nor the concurring opinion discusses the underlying facts:

The victim, who was the sole person to testify about the facts concerning defendant’s conviction of robbery in the third degree, gave a statement to police, through an interpreter, several hours after the alleged robbery that was inconsistent on a material element of the offense with his trial testimony. That statement was introduced through the officer’s testimony at trial, solely for the purpose of impeachment. When an alleged contradictory prior statement is admitted solely for the purpose of impeachment, the rule of People v Ledwon (153 NY 10 [1897]) and People v Jackson (65 NY2d 265 [1985]) is not implicated. The evidence was legally sufficient to support the inference that defendant intended to steal property forcibly … . People v Howard, 2025 NY Slip Op 00804, CtApp 2-13-25

Practice Point: Here a prior inconsistent statement by the robbery victim, the only fact witness at trial, did not render the evidence legally insufficient.

 

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HERE THE LLC AGREEMENT, IN ACCORDANCE WITH ITS TERMS, WAS UNILATERALLY AMENDED BY DEFENDANT SUCH THAT DEFENDANT’S PRIOR CONTRACTUAL OBLIGATION TO PLAINTIFF WAS EXTINGUISHED AFTER PLAINTIFF HAD PERFORMED; ALTHOUGH HARSH, THIS OUTCOME WAS SUPPORTED BY DELAWARE LAW AND WAS AFFIRMED BY THE MAJORITY OVER A THREE-JUDGE DISSENT (CT APP). ​

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Singas, over a three-judge dissenting opinion, determined plaintiff was bound by the terms of an amended limited liability company (LLC) agreement which was unilaterally amended by defendant. The amended agreement included a merger clause which effectively nullified a prior oral agreement between plaintiff and defendant providing that defendant would buy-out plaintiff’s interest in the LLC after five years. Plaintiff had invested three million and his share of the LLC was worth over 11 million at the five-year mark:

… [T]he amended LLC agreement … contained a merger clause which states:

“This Agreement, together with the Certificate of Formation, each Subscription Agreement and all related Exhibits and Schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter, including the Original Agreement.” * * *

Upon his initial investment, plaintiff became bound by the original LLC agreement, including its clause dictating how its terms could be altered. Once the agreement was altered pursuant to its terms, plaintiff became bound by the amended LLC agreement, including its merger clause. Pursuant to the amended LLC agreement’s choice-of-law provision, Delaware law governs its interpretation and reach … . Under Delaware’s Limited Liability Company Act, which aims to “give the maximum effect to the principle of freedom of contract and to the enforceability of limited liability company agreements” … , a member of an LLC “is bound by the limited liability company agreement whether or not the member . . . executes the limited liability company agreement” … . Plaintiff, as a member of [the LLC], is therefore bound by its operating LLC agreement—the amended LLC agreement—regardless of whether he signed it. * * *

Though an outcome whereby one member to a contract unilaterally extinguishes his contractual obligation, even after the other party has performed, may appear “harsh,” … Delaware law “unambiguously advises prospective investors in a closely held LLC (especially one considering a multimillion-dollar investment) to scrutinize the existing LLC agreement and condition their investment upon the clear written delineation thereunder of . . . their contracted-for rights in the event of any future amendments to the LLC agreement” … . Behler v Kai-Shing Tao, 2025 NY Slip Op 00803, CtApp 2-13-25

Practice Point: Here the LLC agreement was, in accordance with its terms, unilaterally amended by defendant to extinguish a prior contractual obligation owed plaintiff after plaintiff had performed. This harsh result was supported by Delaware law, which basically says anyone entering an LLC agreement which can be unilaterally changed should think twice.

 

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THE MAJORITY AFFIRMED WITHOUT DISCUSSION; JUDGE RIVERA IN A DISSENTING OPINION JOINED BY JUDGE WILSON WOULD HAVE REVERSED ON INEFFECTIVE ASSISTANCE GROUNDS (CT APP). ​

The Court of Appeals affirmed defendant’s burglary, assault, criminal contempt and resisting arrest convictions without discussion. Judges Rivera and Wilson would have reversed on ineffective assistance grounds:

From the dissent:

Counsel’s performance here was deficient in several respects and no reasonable defense strategy explains those failings. Before trial, counsel’s boilerplate motion referenced matters not at issue and lacked factual support in several respects, evincing counsel’s failure to properly investigate defendant’s case. Counsel also failed to show defendant video crucial to the prosecution’s case until shortly before trial—and even then, only after defendant complained to the court and the court ordered counsel to provide the video. During trial, counsel’s cross-examination of the victim resulted in admission of defendant’s criminal history, even though the trial court had denied the prosecution’s request to present that same history should defendant testify. Counsel then failed to object to an obviously-ambiguous jury instruction that might have resulted in a conviction on the top count. Despite these glaring errors, the majority concludes that defendant received constitutionally-acceptable representation. This outcome ignores our precedents and reduces the right to effective counsel to a platitude spoken to appease defendants. Our State Constitution’s guarantee of effective assistance ensures the integrity of the process and a fair trial—including for those defendants who appear guilty. Counsel’s many errors fell below that standard. I would therefore reverse and order a new trial. People v Howard, 2025 NY Slip Op 00184, CtApp 1-14-25

Practice Point: Although the majority affirmed the convictions without discussion, the two-judge dissenting opinion described “glaring errors” by defense counsel in detail.

 

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