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SORA RISK-LEVEL POINTS SHOULD NOT HAVE BEEN ASSESSED BASED UPON A JUVENILE DELINQUENCY ADJUDICATION; THE EVIDENCE DID NOT SUPPORT AN AUTOMATIC OVERRIDE FOR AN “ABNORMALITY THAT DECREASES THE ABILITY TO CONTROL IMPULSIVE SEXUAL BEHAVIOR” (FOURTH DEPT).

The Fourth Department, reducing defendant’s risk level assessment from three to two determined (1) the court should not have based a 10-point assessment on a juvenile delinquency adjudication and (2) the evidence did not demonstrate defendant suffered from an abnormality that decreased his ability to control impulsive sexual behavior:

Defendant was assessed 10 points under risk factor 8 for his age at the time of his first sex crime based on a juvenile delinquency adjudication when he was 15 years old, and the court rejected defendant’s challenge to the assessment of points under that risk factor. We have repeatedly held, however, that a juvenile delinquency adjudication may not be considered a crime for purposes of assessing points in a SORA determination … . * * *

Defendant also contends that the court erred when it,… adjudicated him a level three risk through application of an automatic override based on “a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior” … . We agree. It is well settled that “[t]he People bear the burden of proving the applicability of a particular override by clear and convincing evidence” … . … While the record supports the conclusion that defendant suffered from mental illness and that he exhibited impulsive behavior, there was no clinical assessment in the record establishing that his mental illness decreased his ability to control his behavior. Of note, neither the People nor the Board of Examiners of Sex Offenders requested that the court apply the automatic override here and, further, defendant never had the opportunity to oppose use of the override before the court decided to apply it. People v Singleton, 2026 NY Slip Op 00756, Fourth Dept 2-11-26

Practice Point: A court cannot assess SORA risk-level points based on a juvenile delinquency adjudication.

Practice Point: Consult this decision for insight into the evidence required to apply an automatic override in a SORA risk-assessment proceeding based on “a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior” … .

 

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GRANDMOTHER DEMONSTRATED “EXTRAORDINARY CIRCUMSTANCES” SUCH THAT SHE HAD STANDING TO SEEK CUSTODY OF THE CHILDREN (FOURTH DEPT.).

The Fourth Department, reversing Family Court and remitting the matter, determined that grandmother had demonstrated “extraordinary circumstances” and she therefore had standing to bring a custody petition:

The evidence here established that, in 2018, the father was arrested and incarcerated until 2022. During that time, the children resided with the mother in the grandmother’s home until October 2021, when the grandmother moved out. The father never saw the children while he was incarcerated, rarely spoke with them, and never sent them cards, letters, or gifts. When the father was released from incarceration, the mother asked him to take custody of the children, which he did starting in July or August 2022; the grandmother visited with the children on the weekends. The mother died less than a year later, and the children lived with the grandmother during the summer of 2023. In September 2023, the parties filed petitions seeking custody of the children, and the court granted the grandmother temporary custody of the children, with the father having visitation. From that time until the conclusion of the hearing in July 2024, the father did not visit with the children and rarely communicated with them.

We conclude that the cumulative effect of the father’s extended incarceration, his failure to maintain contact with the children during that time, the children’s resulting bond with the grandmother, and the father’s failure to maintain contact with the children during the pendency of the hearing, is sufficient to establish extraordinary circumstances … . Matter of Craig v Thomas, 2026 NY Slip Op 00751, Fourth Dept 2-11-26

Practice Point: Consult this decision for insight into the nature of “extraordinary circumstances” which will confer standing upon a grandparent to seek custody of the grandchildren.

 

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THE JUDGE IN THIS AGGRAVATED CRUELTY TO ANIMALS CASE SHOULD NOT HAVE REDUCED THE COUNTS IN THE INDICTMENT ABSENT A WRITTEN MOTION OR A WAIVER BY THE PEOPLE; THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE INDICTMENT; THE JUDGE SHOULD NOT HAVE DETERMINED DEFENDANT COULD NOT HAVE FORMED THE REQUISITE INTENT DUE TO MENTAL DISEASE OR DEFECT; ONLY A JURY CAN MAKE THAT DETERMINATION (FOURTH DEPT).

The Fourth Department, reversing County Court in this aggravated cruelty to animals case, determined (1) the judge should not have reduced the counts in the indictment absent a written motion and (2) the evidence presented to the grand jury was legally sufficient to support the indictment. Defendant put three kittens in a knotted pillowcase left them on a balcony during a snow storm. They were discovered under several feet of snow. Two of the kittens died. The judge apparently concluded the defendant, due to mental disease of defect, was not capable of forming the intent to commit the offense. The Fourth Department noted that only a jury can make that determination:

… County Court erred in reducing the counts without a written motion requesting such relief. “A motion to dismiss an indictment pursuant to [CPL] 210.20 must be made in writing and upon reasonable notice to the people” (CPL 210.45 [1] …). “The procedural requirements of CPL 210.45 must be adhered to even when consideration of the dismissal is upon the court’s own motion” … . Unless those requirements have been waived by the People, “[t]he failure . . . to comply with the statutory mandates requires a reversal” … . * * *

We conclude that the evidence before the grand jury was legally sufficient to establish that defendant, with no justifiable purpose, intentionally killed the kittens and that defendant did so with aggravated cruelty inasmuch as defendant killed the kittens in a manner that inflicted extreme pain on the dying animals … or did so in a manner likely to prolong the animals’ suffering … .

To the extent that the court reduced the counts on its own finding that defendant could not form the requisite intent, that was improper weighing of the evidence inasmuch as “consideration of a potential defense of mental disease or defect should rest exclusively with the petit jury” … . People v Taylor, 2026 NY Slip Op 00738, Fourth Dept 2-11-25

Practice Point: A judge cannot on the court’s own motion reduce counts of an indictment. There must be a written motion absent a waiver by the People.

Practice Point: A judge cannot, sua sponte, find that defendant could not form the required intent to commit the charged offense due to mental disease or defect. Only a jury can make that determination.

 

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DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO CHALLENGE THE INITIAL POLICE CONTACT WITH THE DEFENDANT AS UNJUSTIFIED; THE MATTER WAS REMITTED FOR A SUPPRESSION HEARING (FOURTH DEPT).

The Fourth Department, ordering a suppression hearing, determined defense counsel was ineffective in failing to challenge whether the police were justified in initiating the encounter with the defendant based upon a vague and ambiguous 911 call:

We conclude that the record establishes that defense counsel could have presented a colorable argument that the police officer’s actions were either not justified at the inception of the encounter or otherwise not reasonably related in scope to the circumstances presented (see De Bour, 40 NY2d at 215). Here, the officer’s encounter with defendant was based on a 911 call from a security guard at a nearby restaurant who said that he observed a man who had what “looks like a black phone, but then again . . . looks like a gun.” The security guard provided a description of the individual, and the guard said that he could not be sure, but that he thought the man might have been part of a dispute that had taken place at the restaurant earlier in the day. Notably, County Court held a Huntley hearing at which the arresting officer testified, but the testimony of the officer as well as his body cam footage, which was admitted at the hearing, presented a ” ‘close [question] under [the] complex De Bour jurisprudence’ ” regarding the legality of the police encounter … . People v Wyatt, 2026 NY Slip Op 00720, Fourth Dept 2-11-26

Practice Point: Defense counsel was deemed ineffective for failing to challenge the initial encounter between the defendant and the police. The remedy was remittal for a suppression hearing.​

 

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ALTHOUGH THE OFFICER WAS RESPONDING TO AN EMERGENCY WHEN PLAINTIFF’S VEHICLE WAS STRUCK, PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE OFFICER ACTED WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS; SPECIFICALLY QUESTIONS WERE RAISED ABOUT THE EXCESSIVE SPEED OF THE POLICE VEHICLE AND WHETHER THE SIREN WAS ON AS REQUIRED BY DEPARTMENT POLICY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant city was not entitled to summary judgment dismissing this action stemming from plaintiff’s vehicle being struck by a police vehicle responding to an emergency. Plaintiff raised a question of fact whether the police officer’s conduct rose to the level of reckless disregard for the safety of others. The officer drove in the oncoming lane of traffic where plaintiff was attempting a left turn:

The “reckless disregard standard demands more than a showing of a lack of due care under the circumstances—the showing typically associated with ordinary negligence claims . . . Rather, for liability to be predicated upon a violation of Vehicle and Traffic Law § 1104, there must be evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome” … . Although the reckless disregard standard is a heightened standard compared to ordinary negligence, it “retains and recognizes the potential for liability as a protection for the general public against disproportionate, overreactive conduct” … . * * *

… [P]laintiff’s submissions raise questions of fact as to the speed at which the officer’s vehicle was traveling at the time of the accident and whether the officer was operating the siren in his vehicle, which would have been required by department policy … . Gwathney v City of Buffalo, 2025 NY Slip Op 07175, Fourth Dept 12-23-25

Practice Point: Here in this police-emergency-traffic-accident case, questions of fact about the speed of the police vehicle (in the oncoming lane where plaintiff was attempting a left turn) and whether the siren was on as required by department policy precluded summary judgment.

 

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THE DEFENDANT DROVE THE SHOOTER TO AND AWAY FROM THE MURDER SCENE; BUT THERE WAS NO EVIDENCE DEFENDANT SHARED THE SHOOTER’S INTENT TO KILL; DEFENDANT’S MURDER CONVICTION AS AN ACCOMPLICE WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction and dismissing the indictment, determined the evidence that defendant drove to shooter to various locations, including the scend of the murder, there was no evidence defendant shared the shooter’s intent. Therefore the evidence was legally insufficient and the conviction was against the weight of the evidence:

… [A] “… defendant’s presence at the scene of the crime, alone, is insufficient for a finding of criminal liability” … . Indeed, evidence that a defendant was at the crime scene and even assisted the perpetrator in removing evidence of that crime is insufficient to support a defendant’s conviction where the People fail to offer evidence from which the jury could rationally exclude the possibility that the defendant was without knowledge of the perpetrator’s intent … . … Here, we have no difficulty concluding, based on the video evidence showing defendant picking up the codefendant immediately after the shots were fired and speeding away from the scene, that there is a valid line of reasoning and permissible inferences by which the jury could have found that defendant intentionally aided the codefendant after the murder, but we cannot conclude that there is legally sufficient evidence to support the inference that defendant shared the codefendant’s intent to kill the victim … . … [T]here was no evidence at trial establishing that defendant and the codefendant had any conversations pertaining to the shooting of the victim; indeed, there is hardly any evidence establishing that defendant and the codefendant had much, if any interaction with each other before the day of the murder. Consequently, we conclude that the evidence was insufficient to establish that defendant was aware of, and shared, the codefendant’s intent to kill the victim … . People v Scott, 2025 NY Slip Op 07167, Fourth Dept 12-23-25

Practice Point: To be guilty of murder as an accomplice, there must be proof defendant shared the killer’s intent. Here there was proof the defendant drove the shooter to the murder scene and drove the shooter away from the murder scene. But there was no evidence defendant was aware of the shooter’s plan to kill, or even that the shooter was armed. Indictment dismissed.

 

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PLAINTIFF’S SUBMISSIONS RAISED A QUESTION OF FACT WHETHER THE ORAL AGREEMENT THAT DEFENDANT WOULD BUY PLAINTIFF’S HOUSE FOR $40,000, OTHERWISE VOID UNDER THE STATUTE OF FRAUDS, WAS ENFORCEABLE BECAUSE IT WAS PARTIALLY PERFORMED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether part performance took the oral contract to purchase property out of the statute of frauds. Plaintiff allowed defendant to move in to plaintiff’s vacant house. At some point, plaintiff and defendant entered an oral agreement that defendant would buy the house for $40,000:

… [P]laintiff submitted, inter alia, defendant’s deposition testimony. Defendant testified that he and plaintiff were friends and that plaintiff allowed him to move into plaintiff’s then-vacant home in 2019 with no agreement to pay rent. Sometime thereafter, the parties orally agreed that, over a period of three years, defendant would pay plaintiff $40,000 for the purchase of the home. Defendant was to pay $600 per month during the first year, and there was no specified payment schedule for the remainder of the term. Defendant made 12 monthly payments of $600 in the first year and thereafter made various lump-sum payments to plaintiff, for a total of $33,200. Defendant also tendered the funds to pay the outstanding balance, but plaintiff rejected that payment and commenced court proceedings. * * *

Although such an oral agreement would generally be unenforceable under the statute of frauds, which provides, inter alia, that a “contract for . . . the sale[ ] of any real property . . . is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing” … , an exception exists “in cases of part performance” … , i.e., where a party to an otherwise unenforceable oral agreement has partially performed under it. The exception is an equitable one, which recognizes that a party may “waive [the] protection [of the statute of frauds] . . . by inducing or permitting without remonstrance another party to the agreement to do acts, pursuant to and in reliance upon the agreement, to such an extent and so substantial in quality as to irremediably alter [the] situation and make the interposition of the statute against performance a fraud” … . Importantly, “[t]he [part] performance must be unequivocally referable to the agreement” … . Dacko v Kiladze, 2025 NY Slip Op 07165, Fourth Dept 12-23-25

Practice Point: Part performance of an oral contract to buy real estate may render the otherwise void contract enforceable.

 

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EVERY STATEMENT DEFENDANT MADE AFTER HE TOLD THE OFFICERS “I AIN’T GOT NOTHING TO TALK ABOUT” SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant had unequivocally asserted his right to remain silent and all statements defendant made thereafter should have been suppressed:

After defendant indicated that he understood [the Miranda] rights, the officer asked whether defendant would agree to waive them and speak to the officer. Defendant did not respond in the affirmative. Instead, he said, “I ain’t got nothing to talk about. I just want to go to jail. I want to go to sleep.” * * *

… [D]efendant said in no uncertain terms that he did not want to talk to the officer and instead wanted to be taken to jail … , and “[n]o reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police” … . The officer nevertheless continued to ask defendant questions that were “reasonably likely to elicit an incriminating response” … . Under the circumstances, we conclude that the court’s determination that defendant did not unequivocally invoke his right to remain silent is “unsupported by the record” … . People v Williams, 2025 NY Slip Op 07158, Fourth Dept 12-23-25

Practice Point: If a defendant tells the police “I ain’t got nothing to talk about” and the police continue questioning him, that is a Miranda violation requiring suppression.

 

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THE TOWN AMBULANCE PARAMEDICS DECIDED NOT TO TAKE PLAINTIFF’S DECEDENT TO THE HOSPITAL; THAT DECISION WAS DISCRETIONARY IN NATURE ENTITLING THE TOWN TO GOVERNMENTAL FUNCTION IMMUNITY IN THIS MED MAL ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the town defendants were entitled to immunity for the actions of the two ambulance paramedics who decided against taking the decedent to the hospital:

“A municipality is immune from liability where the actions of its employees in performing governmental functions involve[ ] the exercise of discretion” … . “[A]mbulance assistance rendered by first responders . . . should be viewed as a classic governmental, rather than proprietary, function” … .

“[D]iscretionary . . . acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … . As the First Department recently made clear, “a generally uniform approach in assessment and care does not change the discretionary nature” of a first responder’s actions or the governmental function they provide … . Under the circumstances presented here, we conclude that the Town defendants established that Rutenkroger’s and Rice’s actions were discretionary and, thus, the Town defendants are entitled to governmental function immunity. Indeed, plaintiff’s contentions pertain “to the quality of the care rendered by [Rutenkroger and Rice and,] even if such decisions prove to be erroneous, they do not cast the [Town] in damages” … . We further note that, “[b]ecause the actions of the [Town’s employees] were discretionary, this Court need not address the issue of whether a special duty was owed to [decedent]” … . Gumkowski v Schwaab, 2025 NY Slip Op 07139, Fourth Dept 12-23-25

Practice Point: Consult this decision for insight into the difference between discretionary and ministerial actions by government personnel. Here the town was immune from liability in this med mal case because the town ambulance paramedics’ determination that plaintiff’s decedent did not need to be taken to the hospital was a discretionary action (governmental function immunity).

 

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SUPREME COURT WENT BEYOND THE PARAMETERS OF THE REMITTAL BY ACCEPTING SUPPLEMENTAL ARGUMENTS ON NEW CASE LAW AND BY RENDERING A DECISION ON GROUNDS NOT INCLUDED IN THE REMITTAL; DISMISSAL OF THE COMPLAINT REVERSED, DEFAMATION CAUSES OF ACTION REINSTATED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined Supreme Court went beyond the parameters of the remittal. Supreme Court had dismissed the complaint. The Fourth Department reinstated several defamation causes of action:

We agree with plaintiff that the court impermissibly expanded the scope of the remittal. “[A] trial court, upon a remand or remittitur, is without power to do anything except to obey the mandate of the higher court, and render judgment in conformity therewith” … . This Court expressed our remittal directive in our order, and Supreme Court impermissibly expanded the scope of that remittal by accepting supplemental arguments on, inter alia, the effect of new case law relating to the retroactivity of the amended anti-SLAPP statute, and by basing its decision on grounds that were not included within the remittal .. . Trinh v Nguyen, 2025 NY Slip Op 07136, Fourth Dept 12-23-25

Practice Point: Here Supreme Court did not follow the mandate of the remittal by accepting new legal arguments and deciding the case on grounds not included in the remittal. Supreme Court’s dismissal of the complaint was reversed.

 

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