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THE DEFENDANT, PERSONALLY, MUST BE GIVEN THE OPPORTUNITY TO CONTROVERT THE PROSECUTION’S PREDICATE FELONY ALLLEGATIONS, AND TO CHALLENGE THE CONSTITUTIONALITY OF THE PREDICATE FELONY SENTENCING SCHEME, EVEN WHEN DEFENSE COUNSEL CONCEDES THE ISSUE; MATTER REMITTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, remitted the matter to give defendant the opportunity to personally controvert the prosecution’s predicate felony allegations, and to challenge the constitutionality of the predicate felony sentencing scheme, despite the defense attorney’s concession of the issue:

… [D]efendant’s challenge to his sentence has merit. The court denied defendant his statutory right to personally controvert the prosecution’s predicate felony allegations when it refused to consider his specific challenge and instead accepted defense counsel’s concession of the issue. Since the court summarily declared defendant a predicate felon and imposed an enhanced sentence, we modify and remit to Supreme Court, where defendant may controvert the predicate felony allegations and have an opportunity to assert his separate constitutional challenge to the Criminal Procedure Law’s predicate felony sentencing scheme. * * *

… Based on the full text of CPL 400.15 (3) and its placement in the predicate sentencing statutory scheme, we conclude that a court must ask the defendant personally if they wish to controvert any allegations in the prosecution’s statement. A totality of factors support this conclusion. First, CPL 400.15 (3) requires that the defendant receive a copy of the statement and that the court ask them if they wish to controvert any allegation contained therein. This procedure thus mandates that the defendant personally has notice of the allegations against them and a corresponding opportunity to be heard. Second, CPL 400.15 (3) refers to the defendant using personal pronouns, which is a deviation from the rest of the statute’s impersonal diction … .

Third, given the significant consequences of the decision to controvert and the information relevant to making that decision, it is unlikely that the legislature intended for defense counsel to be able to refuse to controvert in the face of the defendant’s opposition, without any further inquiry by the court. Indeed, the failure to controvert results in an automatic sentence enhancement in the present case and in any future sentences and therefore has lifetime ramifications … . …

These factors, considered together, make clear that the term “defendant,” as written in CPL 400.15 (3), refers to the defendant personally. In these key ways, CPL 400.15 (3) differs from provisions of the CPL that refer to the “defendant” interchangeably with “the defense,” without additional language suggesting that the legislature requires a court to direct its inquiry to the defendant. People v Wright, 2025 NY Slip Op 05869, CtApp 10-23-25

Practice Point: A defendant, personally, must be given the opportunity to controvert the prosecution’s predicate felony allegations, and to challenge the constitutionality of the predicate felony sentencing scheme, even in the face of defense counsel’s concession of the issue. Here the matter was remitted for that purpose​.

 

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DEFENDANT’S CONVICTION WAS REVERSED AND DEFENDANT APPLIED FOR BAIL; SUPREME COURT DENIED THE REQUEST WITHOUT THE REQUIRED EXPLANATION AND WITHOUT MAKING THE REQUIRED FLIGHT RISK DETERMINATION; DEFENDANT FILED A HABEAS CORPUS PETITION; PETITION HELD IN ABEYANCE PENDING THE ISSUANCE OF A NEW SECURING ORDER (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a two-judge concurring opinion, determined the habeas petition should be held in abeyance and a new securing order which complies with Criminal Procedure Law (CPL) 510.10 should be issued:

While awaiting retrial after his criminal conviction was reversed on appeal, defendant Diego Guerra applied for a new securing order under the current version of the bail law. That statute requires a court to “make an individualized determination” as to the defendant’s flight risk and to “explain the basis for its determination and its choice of securing order on the record or in writing” (CPL 510.10 [1]; see also 530.40 [4]). Supreme Court ordered the defendant remanded to custody but neither explained that decision nor made an explicit determination as to flight risk.

Defense counsel filed this habeas petition in the Appellate Division, and we now review that Court’s dismissal of the writ. We conclude that Supreme Court abused its discretion by failing to make an individualized flight risk determination and to explain both the basis for that determination and the choice of securing order, as required by statute. Accordingly, we reverse and remand to the Appellate Division for issuance of a new securing order in compliance with CPL 510.10. People ex rel. Kon v Lynelle Maginley-Liddie, 2025 NY Slip Op 05785, CtApp 10-21-25

Practice Point: Pursuant to CPL 510.10, in denying a request for bail, the judge must make an individualized flight-risk determination and explain the basis of that determination and the choice of securing order. The failure to comply with those statutory requirements is an abuse of discretion.

 

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HERE THE OFFICE OF COURT ADMINISTRATION’S (OCA’S) BLANKET ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE RE: THE FOIL REQUEST FOR COMMUNICATIONS BETWEEN OCA AND JUDGES WAS REJECTED; ALTHOUGH UPON REMAND THE PRIVILEGE MAY BE SHOWN TO APPLY TO INIDVIDUAL, IDENTIFIED DOCUMENTS, THE OCA DID NOT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP WITH ALL THE JUDGES SUCH THAT A BLANKET ASSERTION OF THE PRIVILEGE WAS APPROPRIATE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, determined that the Office of Court Administration (OCA) was not entitled to a blanket assertion of attorney-client privilege in response to a FOIL request by the NY Civil Liberties Union (NYCLU) that followed the leak of a 2021 internal OCA memorandum proposing a narrow reading of a recent court decisions which was widely distributed to judges:

… “[W]hether a particular document is or is not protected is necessarily a fact-specific determination, most often requiring in camera review” … . Without having identified or produced any documents for in camera review, OCA cannot assert a blanket privilege over the entire universe of potentially responsive documents. In reaching this conclusion, we do not suggest that Counsel’s Office could never establish such a relationship. But we decline to recognize the sweeping, ex ante privilege that OCA claims here.

We hold that OCA has failed to meet its preliminary burden of establishing an attorney-client relationship with all UCS judges. Should OCA continue to assert this privilege over any specific documents identified in response to the limited request upon which the parties have now agreed, the court on remittal should assess whether such documents fall within the asserted exemption, including by in camera review as necessary … . Matter of New York Civ. Liberties Union v New York State Off. of Ct. Admin., 2025 NY Slip Op 05784, CtApp 10-21-25

Practice Point: Here, in this FOIL case, the blanket assertion of the attorney-client privilege for communications between the Office of Court Administration (OCA) and all judges was rejected. Whether the privilege applies must be assessed in the context of a review of the individual documents identified in the request.

 

THE FOIL REQUIREMENT THAT THE REQUESTED DOCUMENTS BE “REASONABLY DESCRIBED” IS DISTINCT FROM THE ABILITY TO RETRIEVE THE DOCUMENTS WITH “REASONABLE EFFORT;” THE TWO STANDARDS SHOULD NOT BE CONFLATED; HERE THE DEPARTMENT OF EDUCATION’S PROFESSED INABILTY TO RETRIEVE THE REQUESTED DOCUMENTS DOES NOT DETERMINE WHETHER THE REQUESTED DOCUMENTS WERE “REASONABLY DESCRIBED;” MATTER REMANDED (CT APP).

The Court of Appeals, reversing the Appellate Division for a remand to the NYC Department of Education (DOE), clarified the FOIL requirements that the requested documents be “reasonably described” and that the documents can be retrieved with “reasonable effort.” Courts have been conflating the two distinct requirements:

Despite the distinct nature and purposes of the reasonable description and reasonable effort requirements, several Appellate Division decisions have adopted a single test that merges those requirements … . But … application of that test has led to inconsistent outcomes … .

Evaluating the reasonable description and reasonable effort requirements separately should alleviate the confusion that the combined test has produced. Whether a requestor has reasonably described an electronic record does not turn on the degree of effort necessary to retrieve it, and the inability of an agency to retrieve a document with reasonable effort does not implicate whether the description in the request was sufficient to allow the agency to locate it. * * *

While the DOE’s professed inability to retrieve the documents is not determinative of whether the request reasonably describes those documents, such inability may bear on whether the DOE has the ability to retrieve the documents with reasonable effort. We therefore conclude that the matter should be remanded to the DOE for a new determination under the proper standard. Matter of Wagner v New York City Dept. of Educ., 2025 NY Slip Op 05783, CtApp 10-21-25

Practice Point: In this FOIL case, the Court of Appeals clarified that whether the requested documents are “reasonably described” is not determined by whether the requested documents can be retrieved with “reasonable effort.” The two distinct standards have been improperly conflated in several Appellate Division decisions.

 

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THE GUARANTY OF RENT DUE UNDER THE COMMERCIAL LEASE WAS A “GOOD GUY” GUARANTY; THE GUARANTOR’S LIABILITY ENDED WHEN THE TENANT VACATED THE PREMISES, NOT SUBSEQUENTLY WHEN THE LANDLORD ACCEPTED THE SURRENDER OF THE PREMISES (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over a two-judge dissent, determined Mr. Lieberman’s guaranty of the rent due under the commercial lease terminated when the tenant vacated the premises, not when the landlord subsequently accepted the surrender of the premises. The opinion turns on interpreting the language of the guaranty and the lease:

In the world of commercial leases, a “good guy” guaranty is a limited guaranty in which the guarantor’s obligation extends only up to the point that the tenant surrenders the premises to the landlord, leaving the tenant solely responsible for rent due from that point forward … . The question in this case is whether the guaranty at issue operates in that manner. The guarantor’s liability ended when the tenant vacated the premises and, under the terms of the guaranty in this agreement, was not conditioned on the landlord’s acceptance of that surrender. Accordingly, we reverse. * * *

It would be a simple matter for parties intending to enter into a “good guy” guaranty to say so explicitly, with clear language that does not require courts to resort to rules of construction regarding superfluity or canons that aid in determining the parties’ intent. Here, although the parties could have expressed their intent in a much simpler and clearer way and avoided this litigation entirely, we conclude that the guaranty in this case is limited, confining the guarantor’s liability to damages accruing prior to the date the tenant surrendered possession of the Premises. Under the terms of the guaranty, WSA [the tenant] surrendered possession of the Premises on or about November 30, 2020 when it provided 1995 CAM [the landlord] notice, completely vacated the Premises, and relinquished control of the Premises. 1995 CAM LLC v West Side Advisors, LLC, 2025 NY Slip Op 05782, CtApp 10-21-25

Practice Point: Consult this opinion for an analysis of a “good guy” guaranty of rent due under a commercial lease.

 

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MOTHER IS PRECLUDED FROM RECOVERING PURELY EMOTIONAL DAMAGES FOR PRENATAL TORTS BASED ON A LACK-OF-INFORMED-CONSENT THEORY; THE CHILD WAS BORN ALIVE IN SERIOUS CONDITION AND DIED SOON THEREAFTER; MOTHER ALLEGED SHE DID NOT CONSENT TO THE FAILED VACUUM EXTRACTION PROCEDURE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Singas, over two dissenting opinions (three judges), determined plaintiff mother was precluded from recovering purely emotional damages for prenatal torts based on lack of informed consent. The child was born alive but died shortly thereafter. Mother alleged she did not consent to the unsuccessful vacuum extraction procedure:

In this appeal, we must determine whether this Court’s precedent limiting recovery of purely emotional damages for prenatal torts, as reaffirmed in Sheppard-Mobley v King (4 NY3d 627 [2005]), applies to medical malpractice claims premised on lack of informed consent. We hold that it does. We are further asked, by plaintiff and the Appellate Division, to overrule our unanimous holding in Sheppard-Mobley and prior cases dictating that result. Adherence to stare decisis principles leads us to decline that invitation. * * *

Though Sheppard-Mobley involved a “traditional” medical malpractice claim, its holding was clear: a birthing parent may not “recover damages for emotional harm where . . . alleged medical malpractice causes in utero injury to the fetus, subsequently born alive” (4 NY3d at 634). As our case law and the Public Health Law make clear, a lack of informed consent claim is a type of medical malpractice claim … . Thus, a straightforward reading of Sheppard-Mobley forecloses plaintiff’s claim. SanMiguel v Grimaldi, 2025 NY Slip Op 05780, CtApp 10-21-25

Practice Point: Adhering to precedent, the Court of Appeals determined mother was precluded from recovering purely emotional damages for prenatal torts based on a lack-of-informed-consent theory. The child was born alive in serious condition. Mother alleged she did not consent to the failed vacuum extraction procedure.

 

THE NYC ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DID NOT MEET ITS BURDEN TO PROVE IT MADE DILIGENT EFFORTS TO HELP REUNITE FATHER WITH HIS CHILD IN THIS PARENTAL-RIGHTS-TERMINATION PROCEEDING (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing Family Court, determined the NYC Administration for Children’s Services (ACS) did not demonstrate “that it undertook ‘diligent efforts to encourage and strengthen the parental relationship’ or that such efforts would have been ‘detrimental to the best interests of the child’…” in this termination of parental rights proceeding:

The record below demonstrates that the child services agency failed to present evidence of diligent efforts to help reunite father and his child before it petitioned to terminate father’s parental rights. First, the agency failed to adequately accommodate and account for father’s linguistic needs. Father does not speak or understand English, but the agency never provided interpretive services during family visits, which were the most significant interactions between father, the child, the agency caseworker, and the child’s foster parents. The agency also failed to provide interpretation services at the child’s medical appointments or even give father advance notice of when those appointments were scheduled, precluding him from taking part in that critical aspect of his child’s care. Second, despite the child services agency’s belief that father’s lack of insight into mother’s mental health needs and their impact on parenting the child was the weightiest barrier to reunification, it failed to refer father to individual counseling or a support group so he could gain that insight. Finally, although the child services agency identified father’s living arrangements and onerous work schedule as further obstacles to reunification, it took few steps to help him secure appropriate housing or employment, which could have made it easier for father to visit his child.

In short, in this proceeding, rather than foster reunification, almost all of the child services agency’s actions—and its failures to take action—ensured that the parent-child bond disintegrated. Thus, the child services agency failed to meet its burden as a matter of law … . Matter of K.Y.Z. (W.Z.), 2025 NY Slip Op 05781, CtApp 10-21-25

Practice Point: Here Children’s Services did not provide an interpreter for father for meetings with the caseworker and foster parents, did not give father advance notice of the child’s medical appointments, made no effort to help father find less burdensome employment or better housing, and did not provide counseling to help him gain insight into mother’s mental illness. “Diligent efforts” to reunite father and child were not made by the agency.

 

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DEFENDANT WAS PROSECUTED AND CONVICTED BY A SPECIAL DISTRICT ATTORNEY WHO DID NOT MEET THE RESIDENCY REQUIREMENTS IN THE COUNTY LAW; THE ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL; THE INDICTMENT WAS PROPERLY DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Fourth Department, determined the court was without authority to appoint a special district attorney who did not meet the residency requirements in the County Law. The defendant, who was convicted, raised the issue for the first time on direct appeal. The indictment was dismissed:

Defendant was charged in Orleans County with various counts of larceny based on allegations that he improperly sold a vehicle that was given to him for repairs and retained the proceeds. The Orleans County District Attorney moved to be disqualified from the case due to his relationship with the alleged victim. County Court granted the application and appointed a special district attorney pursuant to County Law § 701 (1) (a). That statute provides that when the district attorney is disqualified from acting in a particular case, “a superior criminal court in the county wherein the action is triable may . . . appoint some attorney at law having an office in or residing in the county, or any adjoining county, to act as special district attorney during the absence, inability or disqualification of the district attorney and such assistants as he or she may have.”

It is undisputed that the special district attorney did not have an office in or reside in Orleans County or any adjoining county and therefore did not satisfy the statute’s residency requirement. Although defendant received correspondence during the course of the prosecution that listed addresses for the special district attorney located in Erie County—which does not adjoin Orleans County—defendant did not challenge the special district attorney’s appointment or otherwise raise the issue before the trial court. After defendant was convicted, however, he raised the issue on direct appeal. The Appellate Division agreed with defendant that the court exceeded its authority by appointing a special district attorney who did not satisfy the residency requirement and dismissed the indictment on this ground … .  People v Callara, 2025 NY Slip Op 05739, CtApp 10-16-25

Practice Point: Here defendant was prosecuted and convicted by a special district attorney who did not meet the residency requirements in the County Law. The issue was first raised on appeal. The appellate court properly dismissed the indictment because the lower court did not have the authority to appoint a special district attorney in violation of the residency provisions of the County Law.

 

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DEFENDANT WAS NOT UNDULY PREJUDICED BY CODEFENDANT’S ATTORNEY’S SUMMATION-ARGUMENT THAT DEFENDANT WAS A SHOOTER AND THE CODEFENDANT WAS NOT; THE TRIAL EVIDENCE DID NOT POINT TO THAT CONCLUSION AND THE JURY WAS INSTRUCTED THAT SUMMATIONS ARE NOT EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming the Fourth Department, determined that the trial judge properly denied the defendant’s motion to sever the trials of the codefendants. The charges stemmed from a drive-by shooting in which two guns were fired. The trial evidence did not demonstrate defendant’s lack of involvement. In summation the codefendant’s attorney argued defendant was one of the shooters and the codefendant was not:

Where counsel for a codefendant essentially functioned as “a second prosecutor” and elicited damaging evidence against the defendant, we have held that severance was required based on the “compelling prejudice” to the defendant … . No similar degree of prejudice was created by codefendant’s closing argument here.

… [D]efendant raised the specter of a potential irreconcilable conflict between the defenses prior to trial, but apart from the comments made in summation, the defenses were remarkably consistent in their primary focus on discrediting the eyewitness. Although Bordies’ [the codefendant’s] argument that the evidence supported the conclusion that defendant was guilty was diametrically opposed to defendant’s claim of innocence, this type of discord emerging between codefendants only in summation did not rise to the level of an irreconcilable conflict for purposes of severance in these particular circumstances.

Moreover, the trial court properly instructed the jury that the attorneys’ arguments were not evidence and should not be considered as evidence when they judged the facts. That being so, and given that the jury is presumed to have followed the court’s instructions … , any conflict raised solely by counsel’s arguments could not have formed the basis of the jury’s verdict. In sum, there was no “undue” prejudice to defendant. People v Everson, 2025 NY Slip Op 05738, CtApp 10-16-25

Practice Point: Consult this opinion for insight into when the severance of codefendants’ trials is required and when it is not.

 

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THE ELEVEN YEAR ELECTION LAW (EYEL), WHICH MANDATES EVEN-YEAR COUNTY ELECTIONS, DOES NOT VIOLATE THE MUNICIPAL HOME RULE PROVISIONS OF THE NEW YORK STATE CONSTITUTION; THE CHALLENGE BY COUNTIES WITH CHARTER PROVISIONS MANDATING ODD-YEAR ELECTIONS WAS REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the state had the authority to pass the Even Year Election Law (EYEL) which mandates even-year local elections. Several counties with charters setting odd-year elections challenged the EYEL as violating the home rule provisions of article IX of the State Constitution:

The Municipal Home Rule Law was enacted contingent on the passage of the current form of article IX to “provide for carrying into effect provisions of article nine of the constitution . . . and to enable local governments to adopt and amend local laws for the purpose of fully and completely exercising the powers granted to them under the terms and spirit of such article” (see Municipal Home Rule Law §§ 50, 59). As relevant here, Municipal Home Rule Law § 33 (3) (b) requires that county charters must “provide for . . . the manner of election or appointment” and “terms of office” for “agencies or officers responsible for the performance of the functions, powers and duties of the county,” while Municipal Home Rule Law § 34 (3) contains a list of topics that a county charter cannot address in a manner inconsistent with enacted state legislation. * * *

Nothing in article IX limits, expressly or by implication, the otherwise plenary authority of the legislature to mandate the timing of certain elections, as the EYEL does … . Consequently, without any such constitutional limitation, the EYEL is a proper exercise of that authority. County of Onondaga v State of New York, 2025 NY Slip Op 05737, CtApp 10-16-25

 

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