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THE WORKERS’ COMPENSATION BOARD’S CONCLUSION THAT CLAIMANT DID NOT PARTICIPATE IN THE WORLD TRADE CENTER RESCUE AND CLEANUP OPERATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board’s conclusion that claimant did not participate in the rescue, recovery and cleanup operations at the World Trade Center (WTC) was not supported by the evidence:

… [C]laimant testified that, during her October 2001 and December 2001 assignments, she was assigned to the NYPD’s command center for the rescue, recovery and cleanup operations. The command center was located 600 feet from the WTC site and there were areas set up at the command center for claimant and others to provide mental health support to police and fire department personnel working on the rescue, recovery and cleanup operations at the site. According to claimant, she would respond to calls concerning distressed workers and those individuals would be brought to the command center or claimant would go the rubble pile where they were working. Claimant would do an assessment as to the extent of the individual’s mental health condition and determine whether the individual could continue working or be taken off line and provided mental health treatment through the NYPD employee assistance program. McArdle [NYPD on-site coordinator] testified that he remembered claimant being at the command center and providing support to those working in the rescue, recovery and cleanup operation and that she was “well received” by the NYPD. McArdle further testified that identifying those individuals who needed to be taken off line for treatment was instrumental in continuing the operation and that many of those individuals were able to return to the operation after treatment. Matter of Goss v WTC Volunteer, 2025 NY Slip Op 01413, Third Dept 3-13-25

 

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ALTHOUGH THE JUDGE APPOINTED STANDBY COUNSEL AS DEFENDANT REQUESTED, THE JUDGE DID NOT CONDUCT AN ADEQUATE INQUIRY TO ENSURE DEFENDANT UNDERSTOOD THE RISKS OF REPRESENTING HIMSELF; GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined the judge did not conduct an adequate inquiry before granting defendant’s request to represent himself. The appointment of standby counsel is not a substitute for an inquiry to make sure a defendant understands the risks:

… [D]efendant repeatedly conditioned his request on proceeding pro se “with standby [counsel].” In response to defendant’s request, County Court inquired as to whether defendant knew the rule regarding standby counsel. Although defendant replied in the negative, the court provided no further explanation and, instead, proceeded to question defendant about his knowledge of the law. Following a week-long adjournment for defendant to confer with counsel regarding his request to proceed pro se, at the next court appearance, defendant reaffirmed his desire to proceed pro se with standby counsel. Although the court informed defendant that he did not qualify for standby counsel because he seemed to be familiar with some legal terms, defendant responded that he was requesting standby counsel because he does not know everything in the law. The record does not otherwise reflect that defendant was informed of or understood that, despite being permitted to proceed with standby counsel, there were risks inherent in proceeding pro se. Upon this record, we conclude that County Court’s inquiry was insufficient to establish that defendant’s waiver of the right to counsel was knowing and voluntary and, accordingly, the plea must be vacated … . People v Gray, 2025 NY Slip Op 01259, Third Dept 3-6-25

Practice Point: The appointment of standby counsel is not a substitute for a judge’s responsibility to make an inquiry to ensure the defendant is aware of the risks of representing himself.

 

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DEFENSE COUNSEL’S FAILURE TO REQUEST THAT THE JURY BE INSTRUCTED ON THE HEIGHTENED DEFINITION OF IMPAIRMENT DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; AT THE TIME OF THE TRIAL THERE WAS NO APPELLATE AUTHORITY FOR THE APPLICATION OF THE HEIGHTENED DEFINITION OF IMPAIRMENT IN ANY CONTEXT OTHER THAN VEHICULAR MANSLAUGHTER (THIRD DEPT).

The Third Department, affirming defendant’s conviction, over a dissent, determined that the heightened definition of “impaired” which has been applied to a vehicular manslaughter charge need not be applied to driving while ability impaired by drugs or a combination thereof, the charges against defendant here. Therefore the failure to request that the jury be instructed to apply the heightened definition of impaired did not constitute ineffective assistance of counsel:

At the time of defendant’s trial, there was no appellate authority which warranted a jury instruction concerning the heightened intoxication standard relative to the crimes that were pending against defendant. In Caden N. [189 AD3d 84], this Court, by its own express language, limited its holding to the crime of vehicular manslaughter, which of course is not present here. That is, this Court was careful to state that it was defining impairment “in the context of assessing whether a person has committed the crime of vehicular manslaughter in the second degree” (People v Caden N., 189 AD3d at 90). In the event that this Court had also wished to apply the new definition of impairment to the underlying crimes of driving while ability impaired by drugs or by a combination thereof, it surely would have explicitly stated as much. * * *

In the absence of any such authority, defense counsel properly acquiesced to the jury being charged in accordance with the definition of impairment that was provided in the Criminal Jury Instructions as of that time. Thus, under these circumstances, it cannot be said that any reasonable defense counsel would have requested the intoxication instruction in place of the impairment instruction, and counsel was not ineffective for failing to do so. People v Ambrosio, 2025 NY Slip Op 01133, Third Dept 2-27-25

Practice Point: The Third Department has applied a heightened definition of impairment for vehicular manslaughter cases. The Fourth Department refused to follow suit. The law in this area is in flux.

 

WHETHER DEFENDANT WAS PROPERLY SENTENCED AS A SECOND FELONY OFFENDER DEPENDS ON THE UNDERLYING FACTS FOR THE PREDICATE FEDERAL OFFENSE WHICH ARE NOT ON THE RECORD; MATTER REMITTED FOR THAT DETERMINATION (THIRD DEPT).

The Third Department, reversing Supreme Court and remitting the matter, determined that whether the federal offense used as a predicate for defendant’s second felony offender designation is the equivalent of a New York felony depends on the underlying facts of the federal offense:

… [T]he federal statute under which defendant was previously convicted provides, in relevant part, that “it shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance” (21 USC § 841 [a] [1]). As defendant points out, the federal statute contains elements not found in certain New York statutes, e.g., manufacturing, and encompasses a mix of felony and misdemeanor offenses … . Hence, resort to the facts underlying defendant’s federal conviction is warranted in order to ascertain whether defendant’s convictions are equivalent to a felony in this state … . However, because defendant did not controvert his status as a second felony offender, the People have not sought to admit an “accusatory instrument that describe[s] the particular act or acts underlying the charge [for purposes of] isolat[ing] and identify[ing] the statutory crime[s] of which . . . defendant was accused” for purposes of “determining whether Penal Law § 70.06 [1] [b] [i] has been satisfied” … . Accordingly, we remit this matter for a hearing on defendant’s CPL 440.20 motion to give the People the opportunity to establish, and defendant the opportunity to protest, the issue of equivalency, which is a determination we cannot make on the current record. People v Darby, 2025 NY Slip Op 01134, Third Dept 2-27-25

Practice Point: When a federal conviction is used as a predicate offense for a second felony offender designation, the federal offense must be equivalent to a New York felony. Here the federal offense included elements not included in the relevant New York felony. In that situation, it is necessary to look at the underlying facts for the federal conviction to determine equivalency.

 

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DEFENDANTS IN THIS SLIP AND FALL CASE FAILED TO DEMONSTRATE THE DEFECT WHICH CAUSED PLAINTIFF’S FOOT TO SINK INTO SOFT ASPHALT WAS TRIVIAL OR OPEN AND OBVIOUS AS A MATTER OF LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants in this slip and fall case did not demonstrate the defect which allegedly caused plaintiff’s foot to sink down about an inch into soft temporary asphalt was trivial or open and obvious as a matter of law:

Although defendants stress that the alleged defect was, at most by plaintiff’s own admission, only an inch in height, even physically small defects can be actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” … . When considering the attendant circumstances, including that the defect formed itself only as plaintiff stepped down on it, the location of the alleged defect in front of plaintiff’s driveway and that defendants acknowledged temporary asphalt could depress or settle but had no record or knowledge if they performed any inspection in the area where plaintiff fell, we cannot say “as a matter of law that the condition was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen” … . Nor can we say that the defect, which may have formed due to voids under the surface of the temporary asphalt and was not physically observable until after plaintiff stepped down on it, “did not constitute a trap for the unwary” … . To this point, the fact that the backfilled trench had a sharply contrasted hue as opposed to the rest of the roadway surface or the mouth of plaintiff’s driveway simply does not translate to an open and obvious condition because of the nature of the defect, which only formed after it had been stepped on, and therefore defendants’ reliance on these facts as an aegis is misplaced. Santiago v National Grid USA Serv. Co., Inc., 2025 NY Slip Op 01139, Third Dept 2-27-25

Practice Point: The defendant seeking summary judgment in a slip and fall case bears the burden of demonstrating the defect which allegedly caused plaintiff to fall was trivial or open and obvious. Here defendants did not submit sufficient evidence to eliminate questions of fact for either theory.

 

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DEFENDANT WAS 16 AT THE TIME OF THE CRIME AND WAS CONVICTED OF MANSLAUGHTER IN 2012; THE CONVICTION WAS AFFIRMED IN 2014; PURSUANT TO A MOTION FOR A WRIT OF CORAM NOBIS BROUGHT IN 2022 IT HAS BEEN DETERMINED THAT SUPREME COURT ERRED IN FAILING TO CONSIDER WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS AND THE MATTER IS NOW REMITTED TO SUPREME COURT FOR THAT PURPOSE (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence, determined the matter should be remitted for a ruling on whether defendant defendant should be afforded youthful offender status. Defendant, who was 16 at the time of the crime was convicted of manslaughter in 2012. His conviction was affirmed in 2014. In 2022 defendant moved for a writ of coram nobis to permit him to argue that Supreme Court erred by failing to determine whether he should be afforded youthful offender status:

The decision to grant or deny youthful offender status rests within the sound exercise of the sentencing court’s discretion to determine “if in the opinion of the court the interest of justice would be served by relieving the eligible youth from the onus of a criminal record” … . “Among the factors to be considered are the gravity of the crime and manner in which it was committed, mitigating circumstances, the defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, the defendant’s reputation, the level of cooperation with authorities, the defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” … . Defendant argues, the People concede, and we agree that defendant is an eligible youth; thus, Supreme Court erred in failing to determine defendant’s eligibility for youthful offender status in the first instance … .

Although this Court has the authority to determine whether defendant is entitled to youthful offender status … , we decline the People’s invitation to do so here in the complete absence of any consideration by the sentencing court as to whether defendant should be adjudicated a youthful offender … . Accordingly, we remit the matter to Supreme Court for the explicit purpose of providing an opportunity to the parties to fully advocate for and against whether youthful offender status for defendant is warranted … . People v Vanderhorst, 2025 NY Slip Op 01012, Third Dept 2-20-25

Practice Point: Here Supreme Court’s erroneous failure to consider whether defendant should be afforded youthful offender status was first raised in a motion for a writ of coram nobis after defendant’s conviction had been affirmed on appeal.

 

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ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT’S CONVICTIONS WERE REVERSED IN THE INTEREST OF JUSTICE; THE CREDIBILITY OF ONE OF THE VICTIMS WAS IMPROPERLY BOLSTERED IN OPINION TESTIMONY BY A POLICE OFFICER AND A PSYCHOLOGIST ASSERTING THAT THE VICTIM WAS BELIEVABLE AND RELIABLE; A PRIOR INCONSISTENT STATEMENT BY ONE OF THE VICTIMS, IN WHICH THE VICTIM DENIED DEFENDANT HAD EVER MOLESTED THE VICTIM, SHOULD HAVE BEEN ADMITTED (THIRD DEPT).

The Third Department, in the interest of justice, reversed the “predatory sexual assault against a child” convictions which involved two victims, and ordered a severance if a new trial is held. The Third Department determined the credibility of one of the victims was improperly bolstered by the testimony by a police officer and a psychologist that they found the victim’s version of events believable and reliable. In addition, the Third Department held that a prior inconsistent statement by one of the victims, denying that defendant ever molested the victim, should have been admitted in evidence:

… [W]e find merit in defendant’s contention that he was deprived of a fair trial based upon the testimonies of Breslin [a police officer] and Spagli [a psychologist], who each offered their opinion as to victim 2’s credibility. Accordingly, notwithstanding defendant’s failure to properly preserve his claim, we exercise our discretion and reverse in the interest of justice (see CPL 470.15 [6] [a] …). “It is always within the sole province of the jury to decide whether the testimony of any witness is truthful or not” … . As such, “to bolster the testimony of another witness . . . by explaining that his [or her] version of the events is more believable than the defendant’s, the . . . testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned” … . Here, Breslin testified that he “felt . . . [victim 2] was telling the truth.” Spagli, in turn, agreed that the goal of reaching the truth “was done in this case” and further testified that she “felt [victim 2] was reliable throughout the course of the investigation.” Supreme Court did not provide a curative instruction.

We are similarly persuaded by defendant’s claim that he was improperly denied the opportunity to impeach victim 2 about an alleged prior inconsistent statement given in an unrelated Family Court matter, in which victim 2 reportedly denied ever having been molested by defendant. * * * The impeachment testimony sought here … concerned the ultimate issue before the jury. Accordingly, we conclude that it was error to preclude defendant from exercizing his right to confront victim 2 about their prior statement; the court could have crafted limitations to prevent the disclosure of unduly prejudicial information upon such questioning … . People v Swartz, 2025 NY Slip Op 01015, Third Dept 2-20-25

Practice Point: If trial errors are severe enough, as they were here, an appellate court has the power to overlook the failure to preserve the errors and reverse in the interest of justice.

 

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ANY DEVIATIONS FROM THE STATE POLICE INVENTORY-SEARCH POLICY WERE MINOR AND DID NOT WARRANT SUPPRESSION OF THE HANDGUN FOUND IN THE SEARCH; THERE WAS A TWO-JUSTICE DISSENT (THIRDD DEPT).

The Third Department, reversing County Court’s suppression of a handgun found in an inventory search, determined any deviations from the State Police’s inventory-search procedure were minor and did not warrant suppression of evidence seized during the search:

As for whether the trooper who conducted the search of the Kia sufficiently complied with that policy, County Court determined that the trooper did not because “there [were] a great many items and effects within the vehicle that are not memorialized within the inventory form” and because the form “was not filled out until some many hours — if not days — after the search was conducted.” * * *

The foregoing were “minor deviation[s] from procedure” under the circumstances of this case “and did not undermine the reasonableness of the limited search,” particularly because “there was no indication that the police were using the procedure as a pretext to search for incriminating evidence” to begin with … . It is not the role of either County Court or this Court to “micromanage the procedures used to search properly impounded” vehicles and, as the record leaves no question both that the towing]and inventory search of the Kia were justified and that the ensuing list of the vehicle’s contents sufficiently complied with State Police policy to meet the constitutional minimum, defendant’s motion to suppress should have been denied in its entirety … . People v Craddock, 2025 NY Slip Op 01016, Third Dept 2-20-25

Practice Point: Here the Third Department held that any deviations from the State Police inventory-search procedure were minor and did not warrant suppression. Two justices dissented.

 

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IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, ABSENT THE CONSENT OF THE PARTIES TO DISPENSE WITH IT, A DISPOSITIONAL HEARING MUST BE HELD AFTER THE COMPLETION OF THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department determined the record supported termination of father’s parental rights, but the order must be reversed because the court failed to hold a dispositional hearing after the completion of the fact-finding hearing. The matter was remitted:

Family Court erred in failing to hold a dispositional hearing. “Family Ct Act § 625 (a) expressly provides that, upon completion of a fact-finding hearing, a dispositional hearing may commence immediately after the required findings are made; provided, however, that if all parties consent the court may, upon motion of any party or upon its own motion, dispense with the dispositional hearing and make an order of disposition on the basis of competent evidence admitted at the fact-finding hearing” … . Given that the record is devoid of the parties’ consent to dispense with a dispositional hearing, the matter is remitted for a dispositional hearing “or to otherwise affirmatively gain the parties’ consent to dispense of the matter without one” … . Matter of Konner N. (Justin O.), 2025 NY Slip Op 01017, Third Dept 2-20-25

Practice Point: Here the order terminating father’s parental rights was reversed because no dispositional hearing was held, and there was no indication the parties consented to proceeding without one. The matter was remitted.

 

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THE RECORD DOES NOT DEMONSTRATE THAT THE TOWN PLANNING BOARD TOOK THE REQUIRED “HARD LOOK” AT THE EFFECTS OF THE EMISSION OF HAZARDOUS AIR POLLUTANTS [HAPS] FROM THE PROPOSED “BIOSOLIDS REMEDIATION AND FERTILIZER PROCESSING FACILITY;” THE NEGATIVE DECLARATION WAS THEREFORE DEEMED ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, reversing Supreme Court’s dismissal of the Article 78 petition contesting the town planning board’s “negative declaration” regarding a proposed “biosolids remediation and fertilizer processing facility.” The record did not demonstrate that the planning board took the required “hard look” at the effects of the emissions from the facility. Instead the board relied on proposed mitigation measures overseen by the Department of Environmental Conservation (DEC):

… [T]he planning board failed to take a hard look at the project’s potential adverse impacts on air, resulting in an arbitrary and capricious negative declaration (see CPLR 7803 [3]). The voluminous record includes the planning board’s meeting minutes, recordings and other documents, all of which are devoid of evidence that the planning board “thoroughly analyze[d]” the project’s generation of 12.7 tons of designated HAPs [hazardous air pollutants] before it issued a negative declaration … . Instead, the planning board appears to have determined that, because the project’s HAP emissions were “mitigated” to fall below the 25-ton threshold for a major source, then emissions at 50% of that rate were also mitigated … . Not only is this conclusion “without sound basis in reason” — it is not clear why the planning board decided that mitigating the impact of 25 tons of HAPs would do the same for 12.7 tons of HAPs — but also “without . . . regard to the facts,” as the record confirms that the planning board never considered the potential impacts of the project’s HAP emissions at al … . * * *

… [T]he planning board’s unexplained deference to DEC’s permitting standards and periodic monitoring with respect to the impacts of the project’s emissions on air quality does not satisfy its SEQRA obligations, resulting in an arbitrary and capricious negative declaration (see CPLR 7803 [3] …). Matter of Clean Air Action Network of Glens Falls, Inc. v Town of Moreau Planning Bd., 2025 NY Slip Op 01020, Third Dept 2-20-25

Practice Point: The lead agency for a State Environmental Quality Review Act (SEQRA) declaration cannot avoid a “hard look” at the potential hazardous air pollutants (HAPS} which will be produced by a proposed facility by simply deferring to the Department of Environmental Conservation’s (DEC’s) permitting and monitoring of the facility.

 

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