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DUE TO AN APPARENT DRAFTING ERROR, A 16-YEAR SENTENCE IS VALID FOR A FIRST TIME VIOLENT FELONY OFFENDER BUT IS ILLEGAL (EXCESSIVE) FOR A SECOND VIOLENT FELONY OFFENDER; THE FACIALLY ILLEGAL SENTENCE MUST BE VACATED; THE ERROR NEED NOT BE PRESERVED (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence, determined the sentence was illegal due to an apparent drafting error. The court noted the error need not be preserved for appeal:

… [T]he 16-year determinate sentence of imprisonment imposed by County Court is illegal. Had defendant been sentenced as a first-time violent felony offender, the court could have imposed a determinate sentence between 7 and 20 years of imprisonment for the conviction of attempted aggravated assault upon a police officer (see Penal Law § 70.02 [3] [b] [ii]). As a second violent felony offender convicted of a class C violent felony, however, defendant faced a determinate sentence of between 7 and 15 years (§ 70.04 [3] [b]). Thus, although seemingly a statutory anomaly resulting from a drafting error … , the 16-year sentence is illegal because it exceeds the maximum sentence permitted by the unambiguous statutory text based on defendant’s predicate felony offender status. “Although [that] issue was not raised before the [sentencing] court . . . , we cannot allow an [illegal] sentence to stand” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing … . People v Barnes, 2025 NY Slip Op 02694, Fourth Dept 5-2-25

Practice Point: A statutory limit placed on a sentence must be complied with by the judge even where, as here, the limit is an obvious drafting error.

 

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THE QUESTIONING OF DEFENDANT CONTINUED DESPITE HER REPEATED STATEMENTS THAT SHE HAD NOTHING ELSE TO SAY AND WAS DONE TALKING; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defendant had unequivocally and repeated stated that she was “done talking” and had “nothing else to say” during her interrogation by investigators. The interrogators continued questioning her as if they hadn’t heard her assert her right to remain silent:

… [W]hile being interrogated at the police station, defendant stated to the investigators six separate times that she had “nothing else to . . . say” and that she was “done talking.” Even if defendant’s initial statement that she had nothing else to say may have been prompted by her “unwillingness to change [her] story” ,,, , she repeated her desire to stop talking even after the conversation shifted to another topic … . It is clear from a viewing of the interrogation video that defendant repeatedly stated in no uncertain terms that she no longer wished to answer any more questions from the investigators. There was nothing equivocal about defendant’s invocations of the right to remain silent, which were not scrupulously honored by the investigators, who continued the interrogation as if they did not hear what defendant had said.

We thus conclude that the court erred in refusing to suppress any and all statements made by defendant on August 19, 2020 after 12:03 a.m. on the interrogation video. “Inasmuch as there is a reasonable possibility that the erroneous admission of defendant’s inculpatory statements contributed to the verdict, the error in refusing to suppress all of those statements cannot be considered harmless, and reversal is required” … . People v Lipton, 2025 NY Slip Op 02691, Fourth Dept 5-2-25

Practice Point: Any statements made in response to questioning after a defendant has told the interrogators he/she is “done talking” and has “nothing else to say” must be suppressed.

 

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THE RECORD IS SILENT ABOUT THE REASON FOR DEFENDANT’S PERIODIC ABSENCE FROM THE TRIAL; WHERE THERE IS NO EVIDENCE A DEFENDANT’S ABSENCE WAS DELIBERATE, CONDUCTING THE TRIAL IN DEFENDANT’S ABSENCE IS A “MODE OF PROCEEDINGS” ERROR REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that conducting the trial in the defendant’s absence was a “mode of proceedings” error which need not be preserved for appeal. If it is clear from the record that a defendant’s absence from the trial was deliberate, there is no error. But here the record was silent about the reason for defendant’s periodic absence:

Because defendant initially appeared for trial, the court was required to determine that his absence was deliberate in order to find that he had forfeited his right to be present … . In making such a determination, a court should “inquire[ ] into the surrounding circumstances” and “recite[ ] on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate” … . Even if the court fails to recite those facts and reasons on the record, no error will be found so long as the court found the absence to be deliberate and the record contains sufficient facts to support that determination, such as where the court granted a brief adjournment to attempt to locate the defendant to no avail … .

Here, the court proceeded in defendant’s absence without making a finding on the record that defendant’s absence was deliberate, without stating facts and reasons that would support a finding of deliberateness, and without granting an adjournment or taking other steps to locate defendant. Under these circumstances, the court committed reversible error and a new trial is required … . People v Taft, 2025 NY Slip Op 02685, Fourth Dept 5-2-25

Practice Point: Where, as here, a defendant is periodically absent from the trial a “mode of proceedings” error has been committed unless the record demonstrates defendant’s absence was a deliberate choice on defendant’s part. Here the record was silent about the reason for defendant’s absence requiring reversal.

 

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PLAINTIFF’S DECEDENT’S LAWSUIT AGAINST DEFENDANT NURSING HOME, WHICH APPARENTLY ALLEGED, AMONG OTHER THINGS, THAT PLAINTIFF’S DECEDENT WAS NEGLIGENTLY EXPOSED TO COVID-19, WAS NOT PRECLUDED BY THE “EMERGENCY OR DISASTER TREATMENT PROTECTION ACT” OR THE “FEDERAL PUBLIC READINESS AND EMERGENCY ACT” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the wrongful death complaint, which apparently alleged, among other things, decedent was negligently exposed to COVID-19 in defendant nursing home, should not have been dismissed. The Fourth Department held that the defendants submissions did not demonstrate the COVID-19-releated immunity provided by the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30-D, §§ 3080-3082) and the Federal Public Readiness and Emergency Preparedness Act (PREP Act) (42 USC § 247d-6d) precluded the lawsuit:

… [D]efendants’ submission of the affidavit of Robert G. Hurlbut, the administrator of the facility during the relevant time period, does not conclusively establish that the act or omission constituting defendants’ alleged negligence occurred in the course of arranging for or providing health care services, and it likewise does not conclusively establish that the treatment of decedent was impacted by the health care facility’s or health care professionals’ decisions or activities in response to or resulting from the COVID-19 outbreak … . We therefore conclude that defendants’ submissions did not conclusively establish the three requirements for immunity under the EDTPA … . …

With respect to the PREP Act * * * plaintiff alleged … that defendants failed to properly sterilize equipment to prevent the spread of infection, failed to follow their own infection control practices, and failed to maintain and utilize the proper personal protective equipment as required by federal law. Plaintiff further alleged that decedent suffered a range of injuries from defendants’ negligence, including pressure ulcers, head injuries, and lacerations, in addition to the contraction of COVID-19. Defendants’ submissions failed to establish that decedent’s injuries arose from the use of an approved countermeasure under the PREP Act … . Sweatman v The Hurlbut, 2025 NY Slip Op 02522, Fourth Dept 4-25-25

Practice Point: In the context of a motion to dismiss the complaint, which apparently alleged, among other things, that plaintiff’s decedent was negligently exposed to COVID-19 in defendant nursing home, the immunity provided by the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30-D, §§ 3080-3082) and the Federal Public Readiness and Emergency Preparedness Act (PREP Act) (42 USC § 247d-6d) was not demonstrated to preclude the lawsuit.

 

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AT THE TIME OF THE COLLISION, THE SHERIFF’S DEPUTY WAS ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, affirming Supreme Court, over a two-justice dissent, determined the police vehicle (driven by Deputy Fong) which collided with plaintiff’s vehicle was engaged in an emergency operation and was not being operated in reckless disregard for the safety of others. The dissenters argued there was a question of fact on the “reckless disregard” issue:​

… [I]t is undisputed that the reckless disregard standard of care applies because Fong was driving an emergency vehicle and was engaged in an emergency operation at the time she proceeded through the red traffic signal (see Vehicle and Traffic Law § 1104 [b] [2]). In addition, defendants established that Fong’s conduct did not rise to a level of reckless disregard for the safety of others. Defendants’ submissions established, in particular, that Fong took several precautions before proceeding into the intersection against the red traffic signal, including bringing her vehicle to a complete stop, looking in all directions, activating her emergency lights, and proceeding slowly into the intersection … . Granath v Monroe County, 2025 NY Slip Op 02521, Fourth Dept 4-25-25

 

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MOTHER’S ALLEGATIONS OF CHANGES IN CIRCUMSTANCES WERE SUFFICIENT TO WARRANT A HEARING ON HER CUSTODY PETITION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s custody petition should not have been summarily dismissed without a hearing:

“A hearing is not automatically required whenever a parent seeks modification of a custody [or visitation] order” … . Rather, “[t]he petitioner must make a sufficient evidentiary showing of a change in circumstances to require a hearing on the issue whether the existing custody [and visitation] order should be modified” … . “In order to survive a motion to dismiss and warrant a hearing, a petition seeking to modify a prior order of custody and visitation must contain factual allegations of a change in circumstances warranting modification to ensure the best interests of the child” … . “When faced with such a motion, ‘the court must give the pleading a liberal construction, accept the facts alleged therein as true, accord the nonmoving party the benefit of every favorable inference, and determine only whether the facts fit within a cognizable legal theory’ ” … .

… The mother alleged that the father had repeatedly and consistently neglected to exercise his right to supervised visitation and had not seen or spoken with the children in over two years … .

… The mother further alleged that, subsequent to entry of the prior order, the older child newly disclosed that, in addition to the previously known sexual abuse to which he and the younger child had been subjected by their paternal uncle at the father’s home, the father too had sexually abused him.

… [T]he mother adequately alleged a change in circumstances based on information—which she received directly from child protective services personnel from the county where the father resides—that the father and his paramour had engaged in conduct that led to the removal of the father’s other children from his care … . Matter of Catherine M.C. v Matthew P.C., 2025 NY Slip Op 02480, Fourth Dept 4-25-25

Practice Point: The most common basis for a Family-Court reversal is the failure to hold a hearing.

 

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THE JUDGE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING THE MANDATORY “SEARCHING INQUIRY;” NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, ordering a new trial, determined defendant’s request to proceed pro se was summarily denied without the required “searching inquiry:”

It is well established that a defendant in a criminal case may invoke the right to proceed pro se provided that “(1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … . Here, the record establishes that defendant requested to represent himself before the start of trial, stating: “I would like to go pro se, and I would like to bring something to the [c]ourt’s attention if I may, your Honor.” The court initially ignored the request, but defense counsel raised the issue twice more, causing the court to tell defendant: “We are not going to address the issue of pro se. You are here with [defense counsel],” whom the court described as “one of the most experienced defense attorneys in town.” Given that the court “recognized defendant as having unequivocally requested to proceed pro se,” it was then required to conduct a “searching inquiry to ensure that . . . defendant’s waiver [of the right to counsel was] knowing, intelligent, and voluntary” … . People v Taylor, 2025 NY Slip Op 02473, Fourth Dept 4-25-25

Practice Point: Once a judge recognizes a defendant has unequivocally requested to represent himself, the judge is required to make a “searching inquiry” to ensure defendant’s waiver of counsel is knowing, intelligent and voluntary. The failure to conduct the inquiry requires reversal.

 

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HERE THE EVIDENCE WAS PURELY CIRCUMSTANTIAL; DEFENDANT’S REQUEST FOR A CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THE MURDER AND ATTEMPTED MURDER CHARGES (FOURTH DEPT). ​

The Fourth Department, ordering a new trial on the murder and attempted murder charges, determined the judge should have given the circumstantial-evidence jury instruction:

“[A] trial court must grant a defendant’s request for a circumstantial evidence charge when the proof of the defendant’s guilt rests solely on circumstantial evidence . . . By contrast, where there is both direct and circumstantial evidence of the defendant’s guilt, such a charge need not be given” … .

The People argue that certain statements made by defendant provided some direct evidence of defendant’s guilt of those charges. A defendant’s “statement[s are] direct evidence only if [they] constitute a relevant admission of guilt” … . Here, we conclude that the statements identified by the People were not admissions of guilt; rather, because they “merely includ[ed] inculpatory acts from which a jury may or may not infer guilt, the statement[s were] circumstantial and not direct evidence” … . The People thus failed to present ” ‘both direct and circumstantial evidence of . . . defendant’s guilt’ ” that would have negated the need for a circumstantial evidence charge … . People v Rodriguez, 2025 NY Slip Op 02454, Fourth Dept 4-25-25

Practice Point: Where the evidence against a defendant is both circumstantial and direct, a request for a circumstantial-evidence jury instruction is properly denied. Where the evidence is purely circumstantial, the request must be granted.​

Practice Point: A defendant’s statements are direct evidence only if they constitute an admission of guilt. Where, as here, the statements include inculpatory acts from which guilt can be inferred the statements constitute circumstantial evidence.

 

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THE “ALLEGEDLY INCAPACITATED PERSON” (AIP) WAS NOT PRESENT FOR THE MENTAL HYGIENE LAW GUARDIANSHIP HEARING; THE AIP’S ATTORNEY CANNOT CONSENT TO THE APPOINTMENT OF A GUARDIAN IF THE AIP IS NOT PRESENT; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the absence of the allegedly incapacitated person (AIP) from the proceeding to appoint a guardian pursuant to the Mental Hygiene Law required remittal:

“Guardianship proceedings, as a drastic intervention in a person’s liberty, must adhere to proper procedural standards” … . Pursuant to Mental Hygiene Law § 81.11, where a petition to have a guardian appointed for an AIP has been filed … , “[a] determination that the appointment of a guardian is necessary for a person alleged to be incapacitated shall be made only after a hearing” … . Any party to the proceeding “shall” have the right to present evidence, call witnesses, cross-examine witnesses and be represented by counsel … .

Most importantly, “[t]he hearing must be conducted in the presence of the person alleged to be incapacitated, either at the courthouse or where the person alleged to be incapacitated resides” … , unless the person is outside the state or “all the information before the court clearly establishes that (i) the person alleged to be incapacitated is completely unable to participate in the hearing or (ii) no meaningful participation will result from the person’s presence at the hearing” … . “There is an ‘overarching value in a court having the opportunity to observe, firsthand, the allegedly incapacitated person’ ” … .

Here, the court did not conduct a hearing in the presence of the AIP. Although the court evaluator informed the court that “[a]ll of the parties here right now agree that the AIP needs a guardian,” it is unclear whether that statement by the court evaluator constitutes an agreement by the AIP’s attorney to the court’s determination to appoint a guardian for all of the AIP’s person and property. Regardless, even if we were to deem this a situation where the AIP’s attorney agreed that the AIP consented to the appointment, “a court should not accept counsel’s representation that the AIP has consented to the appointment of a guardian where the AIP is not present” … . “[T]he court must first determine whether the AIP has the requisite capacity to consent, and must then make a finding of the AIP’s agreement to the terms of the guardianship, on the record” … . Matter of Chang v Billie J.C.-W., 2025 NY Slip Op 02446, Fourth Dept 4-25-25

Practice Point: A Mental Hygiene Law guardianship hearing must be held in the presence of the allegedly incapacitated person (AIP) absent proof the AIP cannot meaningfully participate. The judge should be able to observe the AIP.

Practice Point: The AIP’s attorney cannot consent to the appointment of a guardian in the AIP’s absence.

 

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FAILURE TO COMPLY WITH THE EMPLOYER’S DIRECTIVE TO TAKE THE COVID-19 VACCINE JUSTIFIED THE TERMINATION OF PETITIONER’S EMPLOYMENT; THE ARBITRATOR’S RULING TO THAT EFFECT DID NOT VIOLATE PUBLIC POLICY AND WAS NOT IRRATIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, affirmed the arbitrator’s determination petitioner was properly terminated because she refused the COVID-19 vaccine:

… [T]he court “erred in vacating the award on the ground that it was against public policy because petitioners failed to meet their heavy burden to establish that the award in this employer-employee dispute violated public policy” … . We further agree with respondents that the court “erred in vacating the award on the ground that it was irrational” … . ” ‘An award is irrational if there is no proof whatever to justify the award’ … . Where, however, “an arbitrator ‘offer[s] even a barely colorable justification for the outcome reached,’ the arbitration award must be upheld” … . Here, inasmuch as it is undisputed that [the employer] directed petitioner to receive the vaccine by a date certain, that it apprised her that her continued employment was dependent upon her compliance, and that petitioner refused to be vaccinated by the required date, the court erred in concluding that the arbitrator’s award was irrational … . Further, the court was not permitted to vacate the award merely because it believed vacatur would better serve the interest of justice … . Matter of Cooper (Roswell Park Comprehensive Cancer Ctr., 2025 NY Slip Op 02445, Fourth Dept 4-25-25

Practice Point: The arbitrator’s determination petitioner was properly terminated for refusing a COVID-19 vaccination did not violate public policy and was not irrational.

 

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