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EQUIVOCAL AND CONTRADICTORY EVIDENCE DID NOT MEET THE “CLEAR AND CONVINCING” STANDARD FOR THE ISSUANCE OF AN “EXTREME RISK PROTECTION ORDER (ERPO)” (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Corcoran, determined the equivocal evidence submitted by the state police was not sufficient to warrant an Extreme Risk Protection Order (ERPO). Respondent, a Department of Motor Vehicles (DMV) employee, had expressed animosity toward his supervisor. During a videoconference meeting with DMV personnel and respondent, a rifle and a handgun were visible near the respondent. Respondent’s vague statements, which were interpreted as threats of violence, were equivocal, and may have referred to respondent’s intent to sue the DMV:

At the hearing, the DMV labor relations representative who conducted the first videoconference meeting testified that respondent appeared intense and aggravated and repeatedly expressed animosity toward his supervisor. The agency director who conducted the second meeting the next day described how respondent sat to the side of the video frame while a rifle, mounted on a stand, and a handgun were prominently displayed on a table behind him. A screenshot of the participants and the firearms display was received in evidence. According to the director, the placement of the firearms “felt very intentional.” He nevertheless completed the hearing without commenting on the firearms, explaining that he wanted to address respondent’s grievance without creating any unnecessary distraction. The following day, respondent called the labor relations representative, asserted that his supervisor had engaged in unlawful discrimination and suggested that he should be supervised by someone else during the investigation. The investigator’s report annexed to the petition reflected that respondent had acknowledged animosity in his “chain of command” and stated that “be[ing] under something that condescending is not going to go well. It’s not a good idea to work under someone in that matter [sic] and you’re going to see later that it’s not a good idea.” … The labor relations representative told the investigator that respondent may have been referring to his stated plan to sue DMV for defamation or discrimination. * * *

… [P]etitioner’s proof of respondent’s alleged threat was equivocal or contradictory, such that petitioner failed to satisfy the requisite burden of proof. Petitioner’s documentary evidence and the testimony adduced at the hearing suggest that respondent’s statement about things “not going to go well” connoted future litigation. … To be sure, Supreme Court acted well within its discretion in finding that respondent testified untruthfully about his knowing display of firearms and that petitioner’s witnesses were more credible. Nonetheless, based upon the equivocal characterizations of respondent’s implied threat contained within petitioner’s own documentary proof and the testimony adduced at the hearing, we are constrained to conclude that petitioner did not establish by clear and convincing evidence that respondent was likely to engage in conduct that would result in serious harm to others. Matter of New York State Police v Brian LL., 2026 NY Slip Op 05832, Third Dept 10-8-26

Practice Point: Consult this opinion for insight into the “clear and convincing” standard of proof in the context of a petition for an “Extreme Risk Protection Order (ERPO).” The standard is not met by equivocal and contradictory proof.

 

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NOTHING IN THE RECORD SUPPORTED THE PROSECUTOR’S REASON FOR STRIKING A JUROR, I.E., THAT THE JUROR “SPOKE BROKEN ENGLISH;” DEFENDANT’S BATSON CHALLENGE TO THE STRIKING OF THE JUROR SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the judgment of conviction and ordering a new trial, determined the defendant’s “Batson” challenge to the striking of a juror (juror No. 95] should have been granted. The record indicates the prosecutor’s reason for striking the juror, i.e., the juror’s “broken English,” was pretextual:

Evaluating the record … becomes problematic in instances where, like here, the nature of the race-neutral explanation given by a prosecutor pertains to a trait — i.e., speech and the ability to communicate — which is not easily captured by the record. Indeed, traits such as accent, dialect, tone, cadence, fluency or manner of speech are not typically represented on a transcript, but nonetheless remain part of the overall calculus as to whether an individual is perceived by others as being able to communicate effectively. This is why it is essential for trial courts, which are in a “unique position to verify . . . [what] is not clearly established in the appellate record” … , to create meaningful records for a reviewing court to uphold its determinations … .

Consequently, we are constrained to agree with defendant that County Court erred in denying his Batson challenge at step three. …[T]he record reflects that neither County Court nor defense counsel indicated any trouble understanding juror No. 95. Rather, County Court and defense counsel expressly disagreed with that characterization during voir dire … . Thus, there is nothing in the record to otherwise suggest that juror No. 95 had difficulty understanding or answering the limited questions posed by County Court, and the trial prosecutor did not ask any questions of this juror. In view of the sparseness of the record at trial and on remittal, as well as the comments and conduct of the trial prosecutor, a determination at step three that juror No. 95 did have difficulty communicating would, at best, be speculative … . Accordingly, since County Court’s determination was unsupported by the voir dire transcript, not based on its recalled observations or the assessment of the prosecutor’s credibility, and is otherwise without a basis in the record, we must reverse and remit the matter for a new trial … . People v Duplessis, 2026 NY Slip Op 05830, Third Dept 10-8-26

​Practice Point: The Third Department stressed the importance of creating a record during a Batson challenge to a juror, “particularly where innate traits such as language are at issue.” Here the prosecutor’s “race-neutral” reason for striking a juror, i.e., that the juror spoke “broken English,” had no support in the record. The appellate court, therefore, was “constrained” to find the reason “pretextual.”

 

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THE CHARGES STEMMED FROM AN ARMED CONFRONTATION WITH POLICE OFFICERS; A PROSPECTIVE JUROR INDICATED SHE “WOULD PROBABLY RELATE TO THE POLICE OFFICERS;” THE DENIAL OF THE DEFENSE CHALLENGE TO THE JUROR REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT). ​

The Third Department, reversing the judgment of conviction and ordering a new trial, determined the defense challenge to a prospective juror should have been granted:

The trial evidence established that officers with the Hudson Police Department responded to a residence regarding a possible domestic incident. Upon their arrival, the officers announced themselves and knocked on the door for approximately five minutes before the door was eventually opened and they were permitted entry. Two officers entered the single-bedroom apartment while two others remained outside. One of the officers inside the apartment then came upon the bedroom where defendant was wielding a knife, which he had raised above his head in the direction of that officer. The officer, who was in uniform and visible to defendant, drew his service weapon and directed defendant to drop the knife multiple times before defendant ultimately did so. Defendant was then placed into custody with extreme difficulty. This chain of events was echoed by the three other officers present during the underlying events. * * *

After acknowledging close relationships with several individuals in law enforcement, the prospective juror expressed that, although she “would like to think [she] can be fair,” she “would probably relate to the [law enforcement] victims.” While “words like ‘think’ or ‘try’ are not talismanic words that automatically make a statement equivocal” … , the prospective juror continued that she “hope[d] that [she] could still be fair.” Altogether, these equivocal statements raised a clear question as to her ability to remain impartial and, therefore, could only be remedied by an unequivocal statement of impartiality … . However, when pressed by defense counsel as to whether she could be fair, the prospective juror failed to directly address the issue and, in fact, seemed to further express her own bias. County Court did not then attempt to rehabilitate the prospective juror … and, as a result, her prior statements of partiality were not remedied … . Under these circumstances we find disqualification to have been required. Thus, because defendant exhausted his peremptory challenges before jury selection was complete, a new trial is necessary … . People v Edmunds, 2026 NY Slip Op 05442, Third Dept 9-23-26

Practice Point: Consult this decision for insight into the inquiry required when a prospective juror indicates a bias in favor of law enforcement.

 

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THE DENIAL WITHOUT PREJUDICE OF A REQUEST TO APPLY FOR RESENTENCING PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) DOES NOT IMPLICATE THE MERITS OF RESENTENCING AND IS NOT APPEALABLE (THIRD DEPT).

The Third Department, over a detailed dissent, determined the dismissal-without-prejudice of the pro se defendant’s request for permission to apply for resentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) (CPL 440.47) was not appealable:

CPL 440.47 is a procedural vehicle that allows “presently incarcerated persons serving sentences of at least eight years . . . to apply for resentencing pursuant to the framework established in Penal Law § 60.12 (1)” … . CPL 440.47 (1) details the pre-application phase, which is step one of the resentencing process. At step one, the defendant must request permission to apply for resentencing in accordance with Penal Law § 60.12 and demonstrate his or her eligibility for same. To do so, there are two simple criteria: such person “[(1)] must include in his or her request documentation proving that she or he is confined in an institution operated by the [D]epartment of [C]orrections and [C]ommunity [S]upervision serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to [August 12, 2019] and [(2)] that she or he is serving such sentence for any offense eligible for an alternative sentence under section 60.12 of the [P]enal [L]aw” ,,, . If the court finds that the defendant satisfies these criteria, it must notify the defendant that he or she may submit an application for resentencing (see CPL 440.47 [1] [c]). After the court notifies the defendant, he or she can request the appointment of an attorney to assist with the next steps … . However, if the court finds that the defendant has not met the requirements to apply for resentencing, it must notify the defendant of same and dismiss the request without prejudice … . It is evident from the plain language contained herein that such dismissal cannot constitute “an order denying resentencing” (CPL 440.47 [3] [a]). Of note, step one, as far as we can tell, is completely unique to the DVSJA as it asks that a defendant request permission to make the CPL 440.47 … . To that end, at step one, the defendant is merely considered a “person” rather than an “applicant” and, as such, has not actually asked the court to grant resentencing … . By virtue of this simple distinction, it is apparent that the pre-application procedure does not implicate the merits of resentencing … .. People v Shawn A., 2026 NY Slip Op 05216, Third Dept 9-3-26

 

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THE THIRD DEPARTMENT CONFIRMED THE PUBLIC EMPLOYMENT RELATIONS BOARD’S (PERB’S) RULING THAT THE VILLAGE IMPROPERLY COERCED A VILLAGE EMPLOYEE TO RESIGN FROM THE UNION AND ACCEPT A LOWER SALARY (THIRD DEPT). ​

The Third Department, confirming the rulings of the Public Employment Relations Board (PERB), in a full-fledged opinion by Justice Fisher, determined the village improperly coerced a village employee to resign from the union and accept a lower salary. The opinion is too detailed and complex to fairly summarize here. The opinion is will-worth reading to gain an understanding of the issues which arise in an employment dispute between a union and a municipality, the application of the Taylor Law, and the jurisdiction and role of the PERB.  Matter of Village of Monticello v AFSCME Local 750-9, Council 66, AFL-CIO, 2026 NY Slip Op 04805, Third Dept 7-30-26

 

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WHERE THE SENTENCING JUDGE ORDERS DOCCS TO ENROLL DEFENDANT IN A SHOCK PROBATION PROGRAM, DOCCS CANNOT CONSIDER THE ORDER TO BE MERELY A RECOMMENDATION WHICH CAN BE IGNORED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined the Department of Corrections and Community Supervision (DOCCS) did not have the discretion to treat Supreme Court’s order to enroll petitioner in the shock probation program as a recommendation which need not be implemented. Although the petitioner had been released from incarceration, the Third Department considered the case as an exception to the mootness doctrine:

… [W]hen applying the literal language of Penal Law § 60.04 (7) (a) and Correction Law § 865 (1), the most rational interpretation of the statutes is that, when the same sentencing judge imposes concurrent sentences on convictions for an eligible drug offense and another non-enumerated offense, the sentencing judge’s directive to enroll an eligible incarcerated individual into the shock incarceration program upon the conviction for the qualifying drug offense is binding on DOCCS, so long as the conviction on the additional non-drug offense is not one of the disqualifying offenses listed in Correction Law § 865 (1). Matter of Adams v Martuscello, 2026 NY Slip Op 04542, Third Dept 7-23-26

Practice Point: Absent a statutory exception, DOCCS must implement a sentencing judge’s order to enroll defendant in the shock probation program.

 

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A POLICE REPORT INDICATING DEFENDANT WAS “HIGHLY INTOXICATED” AT THE TIME OF THE SHOOTING WAS NOT ADMISSIBLE AS A BUSINESS RECORD, CRITERIA EXPLAINED IN SOME DEPTH (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Powers, affirmed County Court’s ruling that a police report which indicated defendant was “highly intoxicated” was not admissible as a business record. Defendant sought to use the report as a basis for his expert’s testimony (presumably to the effect that defendant was intoxicated at the time of the shooting):

It is uncontested that the drafter of the report, a lieutenant with the State Police, did not observe the events described therein or, more specifically, defendant’s level of intoxication that night. The inquiry thus distills to whether defendant, as the proponent of the report, sufficiently demonstrated that the source of the statement that he was “highly intoxicated” was an individual with a duty to report such information. We find that defendant failed to meet this burden. The hearing testimony demonstrated that the lieutenant drafted the report based upon information received from numerous sources. However, he was unable to identify who had reported defendant to be highly intoxicated. Defendant’s argument that, because the scene had been secured, the statement must have come from a responding officer’s personal observations is entirely speculative, as nothing in the language of the report itself or the record confirms that an officer was the source of the statement. It is possible that the clause was included based upon defendant’s fiance’s description of defendant as “drunk as a skunk” when making a 911 call that evening. She, as opposed to responding law enforcement, had no business duty to report … . Because defendant did not meet this foundational requirement by demonstrating that “the initial declarant was] acting within the course of regular business conduct,” he failed to demonstrate the admissibility of the report, as well as the specific statement at issue, pursuant to the business records exception … . People v Mawhiney, 2026 NY Slip Op 04460, Third Dept 7-16-26

Practice Point: Here defendant unsuccessfully sought to have a police report which indicated he was highly intoxicated at the time of the shooting admitted as a business record. The criteria for admission as a business record are explained in depth.

 

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MOTHER’S BEHAVIOR DID NOT AMOUNT TO A FORFEITURE OF HER RIGHT TO COUNSEL IN THIS VISITATION PROCEEDING (THIRD DEPT).

The Third Department, reversing the order of Family Court in this visitation proceeding, determined mother was denied her right to counsel. After attempts to assign counsel failed, the judge essentially forced mother to proceed without an attorney:

Pursuant to Family Ct Act § 262 (a), respondents in visitation proceedings have a right to be represented by counsel and, if they are financially unable to obtain counsel, have the right to have counsel assigned by the court … . * * *

“Here, the record is clear that the mother did not wish to proceed pro se, but was forced to do so” … ; as such, “the record . . . does not indicate that [she] made a knowing and intelligent waiver of [her] rights to be represented by counsel” … . It appears from the record that Family Court determined that the mother had forfeited her right to counsel. Indeed, “[a] litigant may forfeit the right to assigned counsel through a persistent pattern of threatening, abusive, obstreperous, and uncooperative behavior with successive assigned counsel” … . However, such a forfeiture is an “extreme, last-resort” based upon “egregious conduct by a [respondent]” … . Simply put, while we are certainly mindful of the difficult position Family Court was in, “the record fails to clearly reflect that the mother engaged in the sort of egregious conduct that would justify a finding that she forfeited her right to assigned counsel” … . Matter of Carlene R. v Heather A., 2026 NY Slip Op 04015, Third Dept 6-25-24

Practice Point: In a Family Court visitation proceeding a party’s waiver of the right to counsel must be explicit. Here it was clear mother did not wish to go forward pro se.

 

 

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CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S SLIP AND FALL, INCLUDING A VIDEO AND PLAINTIFF’S DESCRIPTION OF THE FALL, WERE SUFFICIENT TO WITHSTAND A SUMMARY JUDGMENT MOTION (THRID DEPT). ​

The Third Department, reversing Supreme Court, determined the defendant grocery store’s motion for summary judgment in this slip and fall action should not have been granted. A video depicted plaintiff coming around the corner of a bottled water display and falling. She testified cases of water protruded into the aisle. Although she she could not say exactly what caused her to trip, the circumstantial evidence of the cause of the fall was sufficient to create a question of fact:

…”[E]ven when a plaintiff is unable to identify the cause of a fall with certainty, a case of negligence based wholly on circumstantial evidence may be established if the plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” … . It is true that Grant never observed the actual item he tripped over, nor its precise location. However, given Grant’s deposition testimony indicating that he tripped over something made of soft plastic, plaintiff’s deposition testimony that there were cases of water hanging over the edge of the endcap and the video portraying a case being knocked off the display as Grant tripped and fell, defendant’s negligence could reasonably be inferred.

Even if defendants had met their initial burden of showing entitlement to judgment as a matter of law, plaintiff raised a triable issue of fact as to whether the endcap display was inherently dangerous … . In opposition to the motion, plaintiff submitted the affidavit of a commercial space designer and retail safety expert who opined that the endcap display was hazardous, inasmuch as the bottom layers of water cases were stacked below a customer’s typical line of sight, which ranges between three to six feet from the ground. According to the expert, defendants failed to conform with certain industry standards concerning the proper height of floor displays and the need for endcap displays to be fully stocked to prevent tripping hazards. Grant v Golub Corp., 2026 NY Slip Op 04013, Third Dept 6-24-26

Practice Point: Consult this decision for an example of sufficient proof of causation of a slip and fall by circumstantial evidence. Usually the failure to pinpoint the exact cause of a slip and fall will be fatal to the action.

 

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DOWSING THE VICTIM WITH ACCELERANT AND IGNITING IT DO NOT SATISFY THE STATUTORY CRITERIA FOR ATTEMPTED MURDER FIRST DEGREE (THIRD DEPT).

The Third Department reversed defendant’s attempted murder first degree conviction as against the weight of the evidence. The act of dowsing the victim with accelerant did not satisfy the “physical pain” element of the offense and the act of igniting the accelerant did not meet the “course of conduct” element of the offense:

A person is guilty of attempted murder in the first degree when, with the intent to cause the death of another person, they attempt to cause the death of such person and, as relevant here, they “act[ ] in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim” … . In People v Estrella (41 NY3d 514 [2024]), the Court of Appeals explained that, to satisfy the course of conduct element of this “torture murder” subparagraph, the People must demonstrate “a series of distinct acts before the victim’s death that are intended to inflict and actually inflict extreme physical pain” … . The Court of Appeals made it clear that, in order to satisfy this standard, it is not enough that only the ultimate fatal act result in such pain … . Further, actions such as planning and stalking cannot be considered part of the course of conduct insofar as they do not cause physical pain … .

Here, assuming arguendo that defendant engaged in a series of distinct acts when he threw accelerant on victim A and then immediately lit her on fire, the evidence nevertheless fails to sustain the subject crime because the act of dousing victim A with accelerant cannot be said, under the particular facts of this case, to have caused her extreme physical pain. To be sure, the evidence plainly revealed the deplorable purpose behind throwing accelerant on victim A, and it would be difficult to imagine such an act not leading to psychological terror. However, such circumstances do not equate to the requisite physical pain … . While the remaining act of setting victim A on fire obviously led to extreme physical pain, a single act does not comprise a course of conduct … . Accordingly, we are constrained to conclude that the conviction on this count is against the weight of the evidence … . People v Ketter, 2026 NY Slip Op 03848, Third Dept 6-18-26

Practice Point: Consult this decision for an analysis of the elements of attempted murder first degree.​

 

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