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THE PROSECUTOR RECOMMENDED A LEVEL ONE RISK ASSESSMENT BUT THE JUDGE ASSESSED ADDITIONAL POINTS AT THE CONCLUSION OF THE HEARING RAISING THE RISK LEVEL TO TWO; BECAUSE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO ARGUE FOR A DOWNWARD DEPARTURE, DEFENDANT IS ENTITLED TO A NEW HEARING (FOURTH DEPT).

The Fourth Department, reversing County Court and remitting the matter, determined defendant was not given an adequate opportunity to argue for a downward departure. The prosecutor had requested a level one risk assessment, but the judge assessed additional points and raised the risk level to two at the conclusion of the hearing:

Defendant further … the court abused its discretion in not granting a downward departure based on certain mitigating factors. At the SORA hearing, the People requested that defendant be designated a level one sex offender, but at the conclusion of the hearing, the court assessed additional points, rendering defendant a level two sex offender. Although defendant does not contend on appeal that the court violated his right to due process by sua sponte assessing additional points … , the court’s ruling did not afford defendant a meaningful opportunity to request a downward departure … . We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new hearing and risk level determination … . People v Kuhn, 2025 NY Slip Op 04434, Fourth Dept 7-25-25

Practice Point: Here the prosecutor recommended risk- level one but the judge, at the conclusion of the hearing, assessed additional points and raised the risk-level to two. The defendant should have been given the opportunity to argue for a downward departure in that circumstance. New hearing ordered.

 

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THE MAJORITY DETERMINED THE PEOPLE DID NOT EXERCISE DUE DILIGENCE IN LOCATING REQUESTED DISCOVERY MATERIALS; THE INDICTMENT WAS PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS; A TWO-JUSTICE DISSENT ARGUED THE TIME WHEN THE OMNIBUS MOTIONS WERE UNDER CONSIDERATION SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, affirmed the dismissal of the indictment on speedy trial grounds. The dissenting justices agreed that the certificate of compliance was invalid, but argued the time that the defense omnibus motions were under consideration should not have been charged to the People:

… [T]he People contend that the court erred in determining that they violated their initial discovery obligations by failing to disclose the police report and body-worn camera footage relating to a welfare check of two of defendant’s children conducted by police officers two days after the alleged assault, inasmuch as they acted in good faith and with due diligence in an attempt to recover the report and footage. We reject that contention. * * *

… [D]espite being aware of the welfare check, which directly related to an issue upon which they presented testimony at the grand jury proceeding, the People failed to undertake the requisite efforts to ascertain the existence of, and obtain, the police report and body-worn camera footage, sending only a single letter to the police department that had conducted the welfare check and failing to follow up. We conclude under the circumstances presented here that the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the initial COC [certificate of compliance] and, thus, the court properly determined that the initial COC was improper and struck the statement of readiness as illusory … .

From the dissent:

… [W]e agree with the majority’s conclusion that the certificate of compliance in this case was invalid … , we cannot agree with the majority’s further conclusion that the People could be charged with more than six months of speedy trial time while defendant’s omnibus motion remained pending. In our view, it cannot be disputed that the omnibus motion remained pending before Supreme Court, i.e., “under consideration” (CPL 30.30 [4] [a]), at least in part, during the relevant time frame inasmuch as the portion of the motion seeking to compel production of certain materials pertaining to a welfare check … was neither decided by the court nor withdrawn by defendant before defendant moved to dismiss the indictment. Because we conclude that defendant’s omnibus motion remained pending before the court until defendant moved to dismiss the indictment on speedy trial grounds, we further conclude that all of the time that elapsed during that period was excludable, and that the People could not be charged with more than six months of statutory speedy trial time as a result … . People v Ernst, 2025 NY Slip Op 04329, Fourth Dept 7-25-25

Practice Point: Consult this decision for a discussion of the meaning of “due diligence” in the context of the People’s response to discovery demands.

 

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THE JUDGE FAILED TO ADEQUATELY CONSIDER FATHER’S ARGUMENTS OPPOSING THE CHILD’S RELOCATION WITH MOTHER AND FAILED TO MAKE FINDINGS OF FACT IN SUPPORT OF THE AWARD OF SOLE CUSTODY TO MOTHER, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court in this modification of custody proceeding and remitting the matter, determined the judge failed to consider father’s arguments opposing relocation with the mother, and failed to make findings of fact to support awarding sole custody to mother:

… [T]he court failed “to consider and give appropriate weight to all of the factors that may be relevant to the determination” … . Although the court properly considered facts supporting the conclusion that the child would be better off economically and emotionally in Massachusetts given, among other things, the mother’s family support system there, it failed to consider or evaluate the father’s reasons for opposing the relocation. Specifically, the court did not consider the mother’s immigration status and the father’s concerns that the mother might try to remove the child from the country … . Indeed, the father testified that the mother still had connections to Morocco and had previously expressed a desire to move back there with the child. He also testified about an incident where the mother took the child’s passport from the father without his consent and in violation of the stipulated order. In short, the court failed to consider whether the father had “a good faith basis for opposing a requested move,” which “is a factor bearing on a relocation determination” … .

… [T]he court failed to make any factual findings to support the award of sole custody—both legal and physical—to the mother … . Effectively, the court awarded the mother sole custody of the child on the basis of its determination on the petition insofar as it sought permission to relocate the child. However, it is “well established that the court is obligated ‘to set forth those facts essential to its decision’ ” … . Here, the court did not make any findings with respect to the relevant factors that it considered in making a determination regarding the best interests of the child … . Crucially, as with its analysis on the issue of relocation, the court, in awarding the mother sole custody, did not consider the father’s stated concerns about the mother’s immigration status and whether she intended to remove the child from the country. “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . Matter of Eddaoudi v Obtenu, 2025 NY Slip Op 04430, Fourth Dept 7-25-25

Practice Point: Consult this decision for some insight into the findings an appellate court needs to consider an appeal in a modification of custody proceeding. A judge’s failure to consider a party’s argument and failure to make findings of fact in support of the award of custody renders an appellate review impossible.

 

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BEFORE GRANTING THE AREA VARIANCE, THE ZONING BOARD OF APPEALS DID NOT REFER THE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW; THE DETERMINATION WAS ANNULLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the petition contesting the area variance granted by the Village of Brockport Zoning Board of Appeals (ZBA) should not have been dismissed on statute of limitations grounds. The General Municipal Law requires that the ZBA first refer a variance application to the planning board, which was not done. Therefore the ZBA ‘s determination was annulled and the petition reinstated:

… General Municipal Law § 239-m requires that a village zoning body, before taking final action on specified proposed actions, refer such proposed actions to a county planning agency for its recommendation (see § 239-m [2]-[4] …). Use and area variances, if they apply to real property set forth in the statute, are proposed actions for which referral is required … . Nevertheless, a county planning agency may enter into an agreement with a village “to provide that certain proposed actions . . . are of local, rather than inter-community or county-wide concern, and are not subject to referral” under the statute … . * * *

Inasmuch as the agreement does not exempt [the] application for an area variance from the referral requirement … and the ZBA did not refer the application to the county planning agency, the ZBA’s approval of the application is jurisdictionally defective … . Consequently, the statute of limitations did not begin to run upon the filing of the jurisdictionally defective document with the village clerk, and the court thus erred in granting the motion to dismiss the petition as untimely … . Moreover, the ZBA’s failure to refer [the] application for an area variance to the county planning agency under these circumstances renders its approval of the application ” ‘null and void’ ” … . Inasmuch as the ZBA’s approval of the area variance is null and void, the further appropriate remedy is to remit the matter to the ZBA for a new determination on [the] application … . … [W]e reverse the judgment, deny the motion, reinstate the petition, grant the petition in part, annul the ZBA’s determination granting the area variance, and remit the matter to the ZBA for a new determination on the application. Matter of Johnson v Zoning Bd. of Appeals of Vil. of Brockport, 2025 NY Slip Op 04326, Fourth Dept 7-25-25

Practice Point: When dealing with local zoning issues, read the applicable statutes and rules carefully. The municipality’s failure to comply with them may provide an opening for judicial action. Here the ZBA’s failure to refer an area variance application to the planning board before granting the application rendered the ZBA determination null and void.​

 

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SHANE, A CO-DEFENDANT WITH HIS PARENTS WITH WHOM HE LIVED, WAS NOT DISQUALIFIED FROM ACCEPTING SERVICE ON BEHALF OF HIS PARENTS DUE TO A CONFLICT OF INTEREST; THE ACTION AGAINST THE PARENTS SHOULD NOT HAVE BEEN VACATED BASED ON A LACK OF PERSONAL JURISDICTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the evidence did not support the finding that Shane, who was living with his parents when he was served with process on behalf of his parents, was not a person of suitable age and discretion due to a conflict of interest with his parents. Shane was a co-defendant along with his parents. The parents were granted vacatur under CPLR 5015(a)(4) on the ground the court lacked personal jurisdiction over them:

“A person would not be considered a person of suitable age and discretion where their interests in the proceeding were sufficiently adverse to the party for whom they were accepting service” … . Furthermore, “[g]ood faith is implicit in the spirit of the statutory scheme. If a plaintiff knows, or should know, that service according to [CPLR 308 (2)] will not afford notice, then, by definition, it is not reasonably calculated to afford notice, and is constitutionally infirm” … .

… [T]here is no evidence in the record to support a determination that plaintiff was aware, or should have been aware, of any alleged conflict between Shane and the parent defendants. We cannot conclude that Shane had a conflict of interest with the parent defendants and, therefore, was not a person of suitable age and discretion, merely because he is a codefendant … . Moreover, on the record before us, we note that this is not a case where plaintiff can be charged with any knowledge that service upon Shane with respect to his parents might be deficient … . Thus, based on the evidence adduced at the traverse hearing, we conclude that plaintiff established that Shane was a person of suitable age and discretion for purposes of serving his parents … . Seebald v Spoonley, 2025 NY Slip Op 04324, Fourth Dept 7-25-25

Practice Point: The fact that a person is a co-defendant does not render that person unqualified to accept service on behalf of other defendants. Here the person served, Shane, a co-defendant in the action, accepted service on behalf of his parents with whom he lived. It was not demonstrated at the traverse hearing that Shane had interests sufficiently adverse to those of his parents to render the service on the parents constitutionally infirm. There was no evidence the plaintiff was aware service upon Shane would be deficient with respect to service on the parents.

 

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THE MAJORITY CONCLUDED PLAINTIFF IN THIS ASBESTOS-EXPOSURE CASE PROVED GENERAL AND SPECIFIC CAUSATION THROUGH EXPERT TESTIMONY; THE DISSENT ARGUED NEITHER CAUSATION ELEMENT WAS SUPPORTED BY SUFFICIENT EVIDENCE (FOURTH DEPT).

The Fourth Department, affirming the denial of the defense motion to set aside the verdict in this asbestos-exposure case, determined plaintiff, through expert testimony, demonstrated both general and specific causation. The dissent found the causation evidence insufficient:

… [I]t is well established that, in cases involving exposure to asbestos or other toxins, ” ‘an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)’ ” … . ” ‘[I]t is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community’ ” … . Indeed, “there may be several ways” for an expert to demonstrate causation, but “any method used must be ‘generally accepted as reliable in the scientific community’ ” … .

From the dissent:

I do not believe that Joseph A. Skrzynski (plaintiff) established general causation, i.e., that exposure to chrysotile asbestos as a component of friction products can cause peritoneal mesothelioma, nor did plaintiff meet his burden of proof on specific causation, i.e., that he was exposed to sufficient levels of chrysotile asbestos to cause peritoneal mesothelioma. Thus, in my view, there is “no valid line of reasoning and permissible inferences [that] could possibly lead rational people to the conclusion reached by the jury on the basis of the evidence presented at trial,” and the verdict should be set aside on the ground that it is not supported by legally sufficient evidence … . Skrzynski v Akebono Brake Corp., 2025 NY Slip Op 04322, Fourth Dept 7-25-25

Practice Point: Consult this decision and the dissent for insight into the proof requirements for general and specific causation in a toxic torts action. Plaintiff must prove the toxin (asbsestos in this case) is capable of causing the disease (mesothelioma in this case) and the toxin in fact caused plaintiff’s disease.

 

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PLAINTIFF IN THIS MED MAL ACTION SHOULD NOT HAVE BEEN PRECLUDED FROM PRESENTING EVIDENCE DECEDENT SHOULD HAVE BEEN GIVEN A BLOOD TRANSFUSION ON THE GROUND THE ISSUE WAS NOT PLED AND PLAINTIFF’S REQUEST FOR A MISSING WITNESS JURY INSTRUCTION WHEN THE DEFENSE INDICATED IT WAS NOT GOING TO CALL THREE DEFENDANTS SHOULD HAVE BEEN GRANTED; DEFENSE VERDICT REVERSED AND NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, ordering a new trial in this medical malpractice action after a defense verdict, determined plaintiff’s should not have been precluded from presenting evidence that decedent should have received a blood transfusion in the emergency room on the ground the issue had not been pled and the judge should have given the missing witness jury instruction after the defense indicated it was not going call three defendants:

… [P]laintiff from the outset alleged that the ED [emergency department] defendants failed to act upon complaints, signs, symptoms, and diagnostic testing, and such allegations were neither new nor would have been a surprise to the ED defendants because they had responded during summary judgment motion practice to the allegation that they should have acted upon the drop in hemoglobin and hematocrit levels. …

… [T]he court abused its discretion in failing to give a missing witness charge for defendants Patel, Chan, and Alexander. A trier of fact in a civil proceeding may draw the strongest inference that the opposing evidence permits against a party who fails to testify … . This type of instruction, which is commonly referred to as a missing witness charge, “derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” … . In seeking use of this charge, “[t]he burden, in the first instance, is upon the party seeking the charge to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call [the witness] to testify” … . Once the foregoing is established, the burden shifts to the party opposing the charge “to account for the witness'[s] absence or otherwise demonstrate that the charge would not be appropriate” … . The opposing party’s burden can be met by demonstrating, inter alia, that “the testimony would be cumulative to other evidence” … . Heinrich v Serens, 2025 NY Slip Op 04318, Fourth Dept 7-25-25

Practice Point: Consult this decision for insight into when the court should give the missing witness jury instruction. Here in the med mal case the defense notification that it was not going to call three defendants as witnesses justified plaintiff’s request for the instruction. Under the facts, the request should have been granted.​

 

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THE MAJORITY HELD THAT DEFENDANT’S FLIGHT PROVIDED REASONABLE SUSPICION OF CRIMINALITY JUSTIFYING PURSUIT IN THIS STREET STOP SCENARIO; THE DISSENT ARGUED FLIGHT ALONE DURING A LEVEL TWO ENCOUNTER DOES NOT JUSTIFY PURSUIT (FOURTH DEPT).

The Fourth Department, after a detailed analysis of the De Bour criteria for a street stop, determined the initial encounter with defendant was lawful, the request for consent to frisk the defendant was lawful, and defendant’s flight provided reasonable suspicion of criminality justifying pursuit. The dissent agued the information available to the police never provided more than a level two right to inquire:

From the dissent:

I respectfully dissent inasmuch as I conclude that the pursuit of defendant was unlawful. At the time the two officers in question approached defendant, they mistakenly believed that they could properly detain defendant. The information they had before them, a general description of a suspect, gave them, as the majority agrees, a level two right to inquire … . In other words, defendant, at the time the officers approached him, had the right to be let alone.

The majority concludes that the degree of suspicion ripened from founded suspicion of criminality to reasonable suspicion upon defendant’s flight, thereby justifying the officers’ pursuit. ” ‘Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry’ ” … . A level two founded suspicion of criminality plus flight cannot equate to level three reasonable suspicion or else a defendant’s right to be let alone during a level two encounter will be rendered utterly meaningless. In my view, the majority ignores binding New York jurisprudence on this point in favor of a standard that erodes the rights that individuals maintain in a level two encounter. As the Court of Appeals recently reiterated, “an individual’s flight from a level one or two police encounter, without more, does not provide the reasonable suspicion necessary to pursue them” … , and defendant, during the lawful level two encounter, and even upon the officers’ requests and his momentary acquiescence, retained his “right to be let alone and refuse to respond to police inquiry” … . People v Smith, 2025 NY Slip Op 04317, Fourth Dept 7-25-25

Practice Point: Consult this decision and the dissent for insight into when a defendant’s flight during a level two street stop will justify police pursuit.

 

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THE MAJORITY CONCLUDED THE QUESTIONING OF DEFENDANT IN HIS BACKYARD AND AT THE HOSPITAL WAS INVESTIGATORY AND DID NOT REQUIRE THE MIRANDA WARNINGS; THERE WAS A DETAILED, FACT-SPECIFIC DISSENT (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, determined the questioning of defendant in his backyard and at the hospital constituted “a noncustodial investigatory inquiry” for which the Miranda warnings were not required. A comprehensive and detailed dissent argued the questioning was in fact “custodial” and the need for the Miranda warnings was triggered:

It is well settled that Miranda warnings must be given when a defendant is subject to custodial interrogation … . “In determining whether suppression is required, the court ‘should consider: (1) the amount of time the defendant spent with the police, (2) whether [defendant’s] freedom of action was restricted in any significant manner, (3) the location and atmosphere in which the defendant was questioned, (4) the degree of cooperation exhibited by the defendant, (5) whether [the defendant] was apprised of [their] constitutional rights, and (6) whether the questioning was investigatory or accusatory in nature’ ” … . Although no Miranda warnings were given to defendant while in his backyard or at the hospital, we conclude upon our review of the relevant factors that, under the circumstances here, the questioning by the police officers in each instance “constituted a noncustodial investigatory inquiry for which Miranda warnings were not required” … .

From the dissent:

In my view, each and every factor in determining whether defendant was in custody for Miranda purposes weighs in defendant’s favor. First, defendant was with the police in his backyard for almost an hour … . Second, defendant’s freedom of action, notwithstanding his leg injury, was restricted in a significant manner from the inception of the encounter. The encounter started with police officers yelling at defendant not to move, to get on the ground, and to let the officers see his hands at all times … . Moreover, defendant was informed multiple times that nothing would happen until the officers found the gun … . Next, the atmosphere in which defendant was questioned was highly intrusive because his backyard was full of officers searching for a gun … . It is apparent from the body camera footage that defendant did not cooperate with the officers because he never told them where the gun was, despite repeated accusatory questioning on the topic … . Despite the above, defendant was not advised of his Miranda warnings, and the officers’ questions to defendant were not merely investigatory in nature … . People v Casiano, 2025 NY Slip Op 04316, Fourth Dept 7-25-25

Practice Point: Consult the dissent for some insight into when questioning by the police crosses the line from an investigatory inquiry to a custodial interrogation.

 

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AFTER A VALID TRAFFIC STOP, ASKING DEFENDANT TO STEP OUT OF THE CAR AND PLACING DEFENDANT IN HANDCUFFS IN THE ABSENCE OF ANY VALID “SAFETY REASONS” CONSTITUTED AN ILLEGAL DETENTION WARRANTING SUPPRESSION OF DEFENDANT’S STATEMENTS (FOURTH DEPT).

The Fourth Department, reversing County Court, suppressing defendant’s statements and ordering a new trial, determined the statements were the fruit of an unlawful detention at a traffic stop. A two-justice dissent argued the unlawful detention lasted less than a minute before the police had probable cause to arrest, and, therefore, a hearing should be held to determine whether the spontaneous statements made by the defendant at the police station were the fruit of the poisonous tree:

The Troopers … directed the driver and defendant to exit the vehicle so the Troopers could conduct an inventory search. Pursuant to standard procedure, the driver and defendant were placed in handcuffs. No other basis for placing the driver and defendant in handcuffs was offered by the People, and at the suppression hearing one of the Troopers testified that, in the City of Rochester, “for our safety reasons, every single time we have somebody exit the vehicle, we put them in handcuffs.” Before the inventory search was conducted, the vehicle’s driver began acting nervous, and when one of the Troopers inquired about her behavior, the driver stated that there was a gun in a bag in the vehicle. The Troopers retrieved and searched the bag, which contained a loaded handgun. Defendant and the driver were then arrested and taken to the State Police station for processing, where defendant began talking to one of the Troopers and made spontaneous statements indicating that the gun belonged to him. * * *

We agree with defendant that by placing him in handcuffs after directing him to exit the vehicle, the Troopers transformed the traffic stop into a “forcible stop and detention” … , which “must be justified by some additional circumstances, such as a threat of evasive conduct . . . ; a need to transport the defendant for a showup procedure . . . ; a fear that the suspect may interfere with the execution of a search warrant . . . ; or a concern for officer safety” … . The People did not present evidence at the suppression hearing of ” ‘articulable facts’ from the encounter to establish reasonable suspicion that defendant posed any danger to the officers” … .

From the dissent:

As the majority concludes, two New York State Troopers unlawfully detained defendant in handcuffs following the traffic stop. At the time, the Troopers had no reason to believe that either defendant or the driver had committed a crime. But the unlawful detention lasted less than a minute before the driver informed the Troopers that there was a gun in the vehicle, thus providing the Troopers with probable cause to arrest both the driver and defendant for criminal possession of a weapon. Thus, at the time he made his statements, defendant was lawfully under arrest. People v Hernandez, 2025 NY Slip Op 04315, Fourth Dept 7-25-25

Practice Point: Apparently the State Police consider the City of Rochester a high crime area and it is standard procedure for them, after a traffic stop in the city, to place the occupants of the car in handcuffs for “safety reasons.” The Fourth Department held that standard procedure constitutes an illegal detention.

 

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