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BECAUSE THERE IS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THAT THE PROPERTY PURCHASED BY A CHURCH WAS NOT BEING USED AS A RETREAT IN VIOLATION OF THE ZONING LAWS AND THEREFORE IS TAX EXEMPT, THE COURT OF APPEALS IS CONSTRAINED TO AFFIRM; THERE WAS A THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined Supreme Court and the Appellate Division properly ruled that the property in Sullivan County purchased by a church in Queens was not being used in violation of the zoning laws and was tax-exempt. The factual question was whether the property was being used as a retreat for church members, which would violate the zoning laws, or whether the property was being used to grow vegetables, which would not violate the zoning law. The majority held it was constrained to affirm because there was support in the record for the factual findings made by Supreme Court:

These proceedings under the Real Property Tax Law present a factual dispute about how a church based in Flushing, Queens, actually used a property it purchased in the Town of Callicoon. Because the lower courts committed no legal error, and because we may not reweigh facts or redetermine issues of credibility, we affirm. * * *

Our role is not to substitute our judgment for that of the hearing court but rather to determine whether there is record support for the decision it reached. Here, the trial record supports Supreme Court’s finding, affirmed by the Appellate Division, that although petitioner may have purchased the property with the intention of using it as a “retreat,”[FN4] its actual use of the property was to clear approximately one acre of the parcel and, on that cleared area, grow vegetables for charitable distribution to low-income Queens residents. The only other trial evidence about actual use of the property was that the Town Supervisor, who lived across the street from the subject property, regularly harvested hay from the property and never saw any overnight use of the property for “retreat” purposes. Matter of First United Methodist Church in Flushing v Assessor, Town of Callicoon, 2025 NY Slip Op 06526. CtApp 11-24-25

Practice Point: The Court of Appeals is constrained to accept the lower courts’ factual findings if there is support for them in the record.

 

A DEFENDANT, BY HIS OR HER CONDUCT, CAN FORFEIT THE RIGHT TO A TRIAL BY 12 JURORS; HERE DEFENDANT APPROACHED THE JURY FOREMAN AT THE FOREMAN’S HOME AND THE FOREMAN WAS DISCHARGED; THE TRIAL JUDGE PROPERLY PROCEEDED WITH 11 JURORS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined defendant, by his egregious conduct directed at the jury foreperson, forfeited his right to a 12-person jury and the trial properly proceeded to a verdict with the remaining 11 jurors:

The foreperson testified that the court adjourned at around 1:00 the day before and, at around 1:25, he took a rideshare home. Outside the gate to his home, a man approached him “on behalf of” defendant and said that defendant was innocent and “being extorted.” The man handed him documents, three of which the foreperson produced for the court. The foreperson asked how the man knew where he lived; the man said: “Public records.” The foreperson testified that he was unsure if the man was the same person as defendant and denied telling the ADA that it was defendant. He described the man as the same height as himself, of indeterminate race, dark-skinned but lighter than himself, average build, and wearing a hat, sunglasses, and a jacket with a high collar. In addition, it was overcast and rainy. The whole interaction lasted under a minute, after which the foreperson went inside and called the ADA [the foreperson’s friend, not the trial ADA] “in a bit of a panic,” concerned for his family’s safety. He then contacted the court on the ADA’s advice. He testified that he could not be impartial. With the agreement of the parties, the court discharged him from the jury, reminded him that the case was ongoing, and instructed him not to speak to anyone about his experience. * * *

Whether forfeiture applies to the right to a jury of 12 is an issue of first impression, but forfeiture has been applied to many constitutional rights in the criminal procedure context. For example, a defendant may forfeit the right to counsel by engaging in ” ‘egregious conduct,’ ” albeit “only as a matter of ‘extreme, last-resort . . . analysis’ ” in cases involving brutal, violent, or persistent abuse … . Use of “violence, threats or chicanery” to make a witness unavailable may result in the forfeiture of the right to confront the witness … . A defendant may forfeit the right to be present at all stages of trial by engaging in courtroom conduct so disruptive that the trial cannot proceed in their presence … . Likewise, a pro se defendant’s disruptive conduct may result in the forfeiture of the right to self-representation … .

We see no reason to exclude the right to trial by a jury of exactly 12 persons from the universe of forfeitable rights. People v Sargeant, 2025 NY Slip Op 06361, CtApp 11-20-25

Practice Point; A defendant, by his or her conduct, can forfeit the right to a trial by 12 jurors. Here the defendant approached the jury foreman at the foreman’s home resulting in the foreman’s discharge from the jury. The trial judge properly proceeded with 11 jurors.

 

THE EXTENSION (NOW TO 2026) OF THE TIME FOR PARTICIPANTS IN THE 9-11 CLEANUP TO FILE CLAIMS FOR MEDICAL BENEFITS DOES NOT APPLY TO CLAIMS FOR DEATH BENEFITS BY A BENEFICIARY OF A DECEASED PARTICIPANT; HERE THE PARTICIPANT’S WIFE MADE A CLAIM FOR DEATH BENEFITS WHICH WAS PROPERLY DENIED BECAUSE THE STATUTORY DEADLINE IN WORKERS’ COMPENSATION LAW SECTION 28 HAD PASSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the two-year death-benefit statute of limitations in Workers’ Compensation Law section 28 precluded a claim for death benefits made by the wife of a volunteer who participated in the 9-11 cleanup and who had received lifetime benefits for resulting medical conditions. Although the deadline for claims for medical benefits has been extended (to 2026), that extension does not apply to claims for death benefits by surviving beneficiaries:

[Workers’ Compensation Law 168] explicitly refers to “[a] claim by a participant,” permits such participant’s claim to be filed within the enumerated extended time period, and again repeats “[a]ny such participant” when stating that certain previously denied claims “shall be reconsidered by the board” … . The phrase “claim by a participant” does not encompass claims by the surviving beneficiaries of those individuals. This is made clearer by comparison with the language in Workers’ Compensation Law § 18, which expressly provides that notice may be given by “any person claiming to be entitled to compensation or some one in his behalf” and can be “signed by [the employee] or by a person on his behalf or, in case of death, by any one or more of his dependents, or by a person, on their behalf.” Likewise, Workers’ Compensation Law § 28 refers to “the claimant” and references payments “to an employee or his dependents in case of death.” Workers’ Compensation Law § 168’s use of the phrase “[a] claim by a participant” must therefore be understood to mean that only a claim brought by a participant, and not by the survivors or beneficiaries of a participant, may benefit from the extended time limits of Workers’ Compensation Law § 168. As the Appellate Division reasoned, “it was decedent who was entitled to file a claim for benefits outside of the period allowed by Workers’ Compensation Law § 28” … .

No other provision provides claimant with relief from the requirement that claims be filed within the two-year limitations period. Matter of Garcia v WTC Volunteer, 2025 NY Slip Op 06360, CtApp 11-20-25

Practice Point: Claims for death benefits by the beneficiaries of deceased participants in the 9-11 cleanup are subject to the two-year statute of limitations in Workers’ Compensation Law.

 

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SIX TOWN OF NEWBURGH VOTERS CHALLENGEDTHE TOWN’S AT-LARGE ELECTION SYSTEM UNDER THE VOTER DILUTION STATUTE WHICH PROHIBITS THE DILUTION OF VOTES OF MEMBERS OF A PROTECTED CLASS, HERE BLACKS AND HISPANICS; THE TOWN RESPONDED WITH A CONSTITUTIONAL CHALLENGE TO THE VOTER DILUTION STATUTE; THE COURT OF APPEALS HELD THE TOWN, A GOVERNMENTAL ENTITY CREATED BY THE STATE LEGISLATURE, COULD NOT CHALLENGE A STATE STATUTE AS FACIALLY UNCONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, affirming the Appellate Division, determined the Town of Newburgh, as a governmental entity created by the state legislature, could not challenge the facial constitutionality of the vote dilution provision of the New York Voting Rights Act (NYVRA) (codified at Election Law 17-200 et seq. Six Newburgh voters sued the Town under Election Law 17-206 which prohibits election methods which dilute the votes of members of a protected class. It was alleged that the at-large election system diluted the power of Black and Hispanic residents such that they were not represented on the Town Board. The Town, in response, asserted a facial constitutional challenge to the dilution provision, Election Law 17-206:

… [A] legislative entity’s challenge to a State law must be “examined with a view towards the relief sought” … . Newburgh seeks invalidation of the entire vote-dilution provision under Election Law § 17-206. For a facial constitutional challenge, principles of “judicial restraint” … counsel strongly against permitting subordinate units of state government from using the judiciary to second-guess the wisdom of enacted legislation. A municipality’s authority to raise a challenge to a State law is at its lowest ebb when that challenge is a facial constitutional challenge, seeking to invalidate a statute in all possible applications, not merely because it allegedly placed the particular municipality in an allegedly untenable position. … “[O]ur capacity rule reflects a self-evident proposition about legislative intent: the ‘manifest improbability’ that the legislature would breathe constitutional rights into a public entity and then equip it with authority to police state legislation on the basis of those rights” … . Clarke v Town of Newburgh, 2025 NY Slip Op 06359, CtApp 11-20-25

Practice Point: Consult this opinion for a discussion of the circumstances under which a town, which is a governmental entity created by the state legislature, can challenge the constitutionality of a state statute. Here a town’s challenge to the facial constitutionality of the voter dilution provision of the Election Law was rejected on the ground the state legislature did not grant towns the right to police state legislation.

 

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THE SEARCH WARRANT WAS BASED UPON STATEMENTS BY AN INFORMANT; BUT THE WARRANT APPLICATION DID NOT DEMONSTRATE THE BASIS OF THE INFORMANT’S KNOWLEDGE; THEREFORE THE EVIDENCE SEIZED PURSUANT TO THE WARRANT SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Second Department, reversing the Appellate Division, determined the search warrant failed the basis of knowledge requirement of the Aguilar-Spinelli test. The seized evidence should have been suppressed, requiring the dismissal of several counts:

… [W]e hold that as a matter of law the evidence provided in support of the 205 Curtis Street search warrant failed to satisfy the basis of knowledge requirement of the Aguilar-Spinelli test … . The general allegation that the informant was “aware that narcotics are kept inside the location” provides no indication “that the information was based upon personal observation” … . Likewise, the informant’s statement that at some unidentified point in time the informant had conducted a narcotics transaction at that address “did not describe defendant’s activities with sufficient particularity to warrant an inference of personal knowledge” … . Nor was the information conveyed by the informant corroborated by police observation … . Accordingly, the informant’s statements fail to meet the requirements of Aguilar-Spinelli and, because there are no other allegations in the search warrant affidavit to establish “a reasonable belief that an offense has been or is being committed or that evidence of a crime may” have been found at 205 Curtis Street … , the search warrant for that address was not supported by probable cause, and the evidence seized there should have been suppressed. People v Berry, 2025 NY Slip Op 06358, Second Dept 11-20-25

Practice Point: If a search warrant is based upon an informant’s statement, to be valid, the warrant application must demonstrate the information was based upon the informant’s personal knowledge.

 

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POST-RELEASE SUPERVISION (PRS) CAN PROPERLY BE IMPOSED WHERE A DEFENDANT IS SENTENCED UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); DEFENDANT WAIVED HER RIGHT TO APPEAL THE SENTENCE AS EXCESSIVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined five years post-release supervision (PRS) was properly imposed as part of defendant’s sentence and defendant waived the right to appeal her sentence as excessive. Defendant pled guilty to second-degree murder and was sentenced to ten years incarceration under the Domestic Violence Survivors Justice Act (DVSJA):​

Defendant does not challenge the carceral component of her sentence. Instead, she asserts that the court had no statutory authority to impose five years’ PRS on a defendant convicted of a class A felony and sentenced under the DVSJA. We may review defendant’s claim that her sentence is illegal even though, as we explain, her appeal waiver is valid … . However, defendant misinterprets the statutory scheme, and her claim boils down to a policy argument best suited for the legislature, not the judiciary. * * *

The legislative history of the DVSJA supports our straightforward reading of the Penal Law, and our conclusion that the legislature only intended to give judges discretion to reduce the periods of incarceration for certain defendants who are domestic violence survivors, not to wholly eliminate PRS in such cases … . * * *

… [T]he court specifically advised defendant that certain issues would survive the waiver, and counsel confirmed that they had reviewed those issues with defendant. The written waiver further clarified that, as explained in defendant’s conversation with the court and counsel, defendant was waiving any claim that her sentence is excessive. Under these circumstances, the Appellate Division properly concluded that defendant knowingly, intelligently and voluntarily waived her excessive sentence claim. People v Hernandez, 2025 NY Slip Op 05874, CtApp 10-23-25

Practice Point: Post-release supervision (PRS) can properly be imposed where a defendant is sentenced under the Domestic Violence Survivors Justice Act (DVSJA).

 

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THE DEFENSE WAS TIMELY PROVIDED WITH IMPEACHMENT INFORMATION REGARDING AN ARRESTING OFFICER; THE FACT THAT AN ADDITIONAL DOCUMENT WITH THAT INFORMATION WAS PROVIDED AFTER THE CERTIFICATE OF COMPLIANCE (COC) WAS FILED, DID NOT RENDER THE PROSECUTION UNTIMELY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a two-judge dissent, determined the prosecution’s failure to turn over an Internal Affairs Bureau (IAB) report which was relevant to the credibility of one of the arresting officers (Congedo) before the filing of the certificate of compliance (COC) with the discovery timetable did not render the prosecution untimely. The opinion is fact-specific. The prosecution had timely alerted the defense to a federal lawsuit based on the alleged misbehavior of the arresting officer described in the IAB report. The majority concluded the allegations in the lawsuit constituted timely notice of the relevant information in the IAB report. The dissent disagreed because the report included information not referenced in the federal lawsuit:

… CPL 245.20 (1) (k) (iv) does not require production of a document just because it provides additional information not in other impeachment material. The question instead is whether the document “tends to . . . impeach the credibility of a testifying prosecution witness” …  Here, the IAB report does not. Our conclusion is not based on any prejudice analysis, but on application of the relevant statutory language. * * *

Because the IAB report did not contain any separate allegations of misconduct against Congedo nor any support for the amended complaint’s allegations as they pertained to Congedo, it did not have any “tend[ency] to . . . impeach” her credibility (CPL 245.20 [1] [k] [iv]). …

… [T]he IAB report itself has no impeachment value. This is not a prejudice consideration … . Rather, CPL 245.20 (1) (k) (iv)’s “tends to . . . impeach” standard inserts considerations of evidentiary value into the disclosure requirement itself. Nothing in CPL 245.20 (1) (k) (iv) additionally requires the People to disclose every single document referencing impeachment material subject to disclosure based solely on that reference. People v Fuentes, 2025 NY Slip Op 05872, CtApp 10-23-25

Practice Point: Re: discovery of information which may be used to impeach an arresting officer, the prosecution is not required to turn over every document which references the impeachment material. Here the defense was given timely notice of a federal lawsuit which included the impeachment material. The fact that a report which referenced the impeachment material was not turned over to the defense until after the certificate of compliance (COC) was filed did not invalidate the COC.

 

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AFTER BREAKING UP A FIGHT BETWEEN TWO MEN ON THE STREET AND HANDCUFFING THEM, THE POLICE QUESTIONED DEFENDANT WITHOUT GIVING THE MIRANDA WARNINGS; DEFENDANT’S ADMISSION HE HAD PUNCHED THE VICTIM SHOULD HAVE BEEN SUPPRESSED; THE ERROR WAS HARMLESS HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined defendant was subjected to custodial interrogation when he was questioned on the street after he was handcuffed. Because the Miranda warnings were not given, defendant’s admission to punching the victim should have been suppressed. However the error was harmless in light of the other evidence, including a video. The police approached defendant and the victim, who were fighting, on the street. Both men were handcuffed and then questioned:

… [I]t is not dispositive that defendant was questioned in the immediate aftermath of the altercation, while the officers were still determining whether a crime had occurred—circumstances Supreme Court seemingly relied on in deeming the encounter a “classic case of investigatory questioning” that did not require Miranda warnings. Our case law draws no categorical distinction between interrogation and so-called investigatory questioning. Interrogation is almost definitionally investigatory in nature. And while we have recognized a “distinction between coercive interrogation and permissible street inquiry” … , the most salient difference between these categories is not when the questioning takes place, but the presence or absence of custody … . As we have explained, “routine police investigation of suspicious conduct on the street generally does not entail a significant deprivation of freedom which would require Miranda warnings” … . Absent “both the elements of police ‘custody’ and police ‘interrogation,’ ” there is no “constitutional requirement that the police recite interrogation warnings when they direct questions or comments at members of the public or solicit information and assistance” … . But where, as here, investigatory questions are directed to a person who is in custody, under circumstances police should know are likely to yield an incriminating response, Miranda warnings are required. People v Robinson, 2025 NY Slip Op 05871, CtApp 10-23-25

Practice Point: Here the police broke up a street fight, handcuffed both men, and then questioned them. Even though the police were still investigating what happened when defendant was questioned, defendant was “in custody” and was being “interrogated,” mandating the Miranda warnings.

 

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THE COMPLAINT ALLEGING THE NYC PUBLIC EDUCATION SYSTEM DISCRIMINATES AGAINST BLACK AND LATINO STUDENTS FAILED AS A MATTER OF LAW (CT APP). ​

The Court of Appeals, reversing (modifying) the Appellate Division, in a full-fledged opinion by Judge Garcia, over a partial dissent and a dissenting opinion, determined the complaint alleging the NYC public education system discriminates against Black and Latino students failed as a matter of law. The opinion is too complex to fairly summarize here:

Plaintiffs allege that the New York City public education system, through its admissions and screening policies, curriculum content, and lack of diversity among the teacher workforce, discriminates against and disproportionately affects Black and Latino students, leading to unequal educational opportunities and negative outcomes for those students. Plaintiffs further allege that these practices and policies deprive Black and Latino students of a sound basic education in contravention of the Education Article of the State Constitution (NY Const, art XI, § 1), denies them equal protection of the laws (NY Const, art I, § 11), and denies them access to educational facilities in violation of the New York State Human Rights Law (Executive Law § 296 [4]). Although plaintiffs identify troubling aspects of New York City’s public education system, the claims as presented in the complaint fail as a matter of law. IntegrateNYC, Inc. v State of New York, 2025 NY Slip Op 05870, CtApp 10-23-25

Practice Point: Consult this opinion for a detailed discussion of the issues raised by a claim that a public school system discriminates against minority students. Here the court acknowledged the complaint identified “troubling aspects” of New York City’s public education system, but held the causes of action failed as a matter of law.

 

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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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