You are here: / Fourth Department

Tag Archive for: Fourth Department

,

THE FACT THAT DEFENDANT WAS PARKED IN A HIGH CRIME AREA NEAR AN APARTMENT COMPLEX AND THE FILED “TRESPASS AFFIDAVIT” BY AN APARTMENT PROPERTY MANAGER, REQUESTING THAT ANYONE ON THE PROPERTY WHO WAS NOT A TENANT BE ARRESTED FOR TRESPASS, DID NOT PROVIDE THE POLICE WITH A “PARTICULARIZED” REASON FOR APPROACHING THE DEFENDANT TO REQUEST INFORMATION; THE COCAINE AND HANDGUN SEIZED UPON THE DEFENDANT’S ARREST SHOULD HAVE BEEN SUPPRESSED; THE INDICTMENT WAS DISMISSED (FOURTH DEPT).

The Fourth Department. suppressing evidence seized upon defendant’s arrest and dismissing the indictment. over a two-justice dissent, determined that the police did not have particularized information which justified approaching defendant’s car which was parked near an apartment complex. There was a “trespass affidavit” by an apartment property manager on file with the police department which requested that any person who was not a tenant be arrested for trespass. The police approached defendant, who, it turned out, was a tenant. But based on an officer’s observation of a bag containing a tan substance inside the car, the officers ordered defendant out the car, searched the defendant’s person and car, and seized cocaine and a handgun:

… [T]he officer’s testimony that the apartment complex was in a high-crime area did not justify approaching defendant. The trespass affidavit failed to afford the officers any more particularized reason for approaching defendant. Therein, although the property manager for the apartment complex stated generally that there “was reason to believe that persons are congregating on the . . . property . . . [who] do not reside at said property,” there was no allegation in the trespass affidavit that the property was, for example, “plagued by illegal drug trade” or gang violence … . Indeed, the property manager did not specify any prior or ongoing incidents of criminal activity on the premises, but instead expressed a general belief that persons might be “congregating on the property,” which is a multi-building residential apartment complex, “without [the property manager’s] permission.” The property manager nonetheless also acknowledged in the trespass affidavit that non-residents were often permissibly on the property, such as guests of tenants. Thus, defendant was not “parked at an establishment around which criminal activity was known to occur” … . Further, the officers observed defendant momentary idling in a vehicle in a publicly accessible parking lot on a summer evening outside a residential apartment complex … , not “in a private space restricted by signage and a lock” … . Thus, nothing in the officers’ observation of defendant’s conduct, even considered in light of the assertions in the trespass affidavit, “provided a particularized reason to request information” … . People v Robinson, 2026 NY Slip Op 01693, Fourth Dept 3-20-26

Practice Point: Here the police did not have a “particularized reason” for approaching defendant’s parked car near an apartment complex. The facts that (1) the defendant was parked in a high crime area and (2) an apartment-complex property manager had filed a “trespass affidavit” with the police was not enough to allow the police to approach the defendant to request information.

 

, ,

THE RECORD SUPPORTED AN ORDER MAKING SPECIAL FINDINGS TO ALLOW A JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) TO AVOID DEPORTATION TO GUATEMALA (FOURTH DEPT). ​

The Fourth Department, reversing Surrogate’s Court, determined the petition for an order making special findings to allow a juvenile to petition for special immigrant juvenile status (SIJS) such that the child can remain in the US and avoid deportation to Guatemala:

The child simultaneously moved for the issuance of an order making special findings that, among other things, the child’s reunification with his parents is not viable due to parental neglect, abandonment, or abuse, and it would not be in his best interests to be returned to Guatemala, his previous country of nationality and last habitual residence. Although Surrogate’s Court granted the guardianship petition, following a subsequent hearing, the Surrogate issued the order on appeal denying the child’s motion for an order making the requisite declaration and special findings on the basis that the child presented “no credible testimony . . . of abuse, abandonment or neglect or that reunification with one or both of his parents is not viable.” * * *

… [T]he evidence established that the child is under the age of 21, unmarried, and a resident alien physically present in the United States and, inasmuch as the Surrogate appointed the child’s brother as his guardian, the child has been legally committed to or placed under the custody of an individual appointed by a juvenile court located in the United States within the meaning of 8 USC § 1101 (a) (27) (J) (i) … .

… [W]e conclude that reunification of the child with his parents is not viable due to parental neglect (see generally Family Ct Act § 1012 [f] [i]). The record demonstrates that the child’s parents did not provide the child with medical care, even after he sustained a serious injury … , encouraged the child to drop out of school and work on the family farm at the age of 15 … , failed to protect the child from gang violence in Guatemala … . … [I]t would not be in the best interests of the child to return to Guatemala, his previous country of nationality and country of last habitual residence … . Matter of Juarez, 2026 NY Slip Op 01686, Fourth Dept 3-20-26

 

, , ,

A HOSPITAL HAS A DUTY TO RETAIN AN INTOXICATED PATIENT WHO HAS BEEN ADMITTED INVOLUNTARILY PURSUANT TO THE MENTAL HYGIENE LAW IF THE PATIENT IS INCAPACITATED TO A DEGREE THERE WAS A LIKELIHOOD OF HARM TO THE PATIENT OR OTHERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether defendant hospital breached its duty to retain the decedent for emergency treatment because decedent was incapacitated by alcohol to a degree there was a likelihood of harm to decedent or others:

A hospital does not owe an intoxicated patient, who went to the hospital voluntarily, a duty to prevent that patient from leaving the hospital against medical advice even when that patient has been admitted to the hospital for medical treatment … . By contrast, however, the decedent here was admitted involuntarily (see Mental Hygiene Law former § 22.09 [e]). Defendant therefore had a duty to retain decedent for emergency treatment if decedent was incapacitated by alcohol or substances to such a degree that there was a likelihood to result in harm to decedent or others, as those terms are defined under Mental Hygiene Law former § 22.09 … .

Assuming, arguendo, that defendant met its burden of demonstrating that it did not breach its duty to ensure that decedent was no longer incapacitated to the degree that there was a likelihood to result in harm to decedent or others, we conclude that plaintiff raised an issue of fact. Plaintiff’s expert opined that, under the circumstances and “especially in such proximity to the events that occurred in the hospital in the hours prior to discharge,” it was a breach of the standard of care to allow decedent to be discharged … . Guadagno v Erie County Med. Ctr. Corp., 2026 NY Slip Op 01698, Fourth Dept 3-20-26

Practice Point: A hospital has a duty to retain an intoxicated patient who has been admitted involuntarily if the patient is incapacitated to a degree there is a likelihood of harm to the patient or others. That duty is not triggered by an intoxicated patient who went to the hospital voluntarily.

 

, , ,

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” … .

 

, ,

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.

 

, , ,

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.

 

, ,

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.​

 

, ,

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.

 

,

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.

 

,

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.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy