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DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE EMPANELING OF AN ANONYMOUS JURY CONSTITUTED INEFFECTIVE ASSISTANCE; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective for failing to object to the empaneling of an anonymous jury:

… [D]efendant contends that his trial counsel was ineffective for failing to object when County Court empaneled an anonymous jury. In support of his motion, defendant submitted the affidavit of his trial counsel, who acknowledged that the decision to empanel an anonymous jury “did not sound right” at the time, but that he did not become aware that this was possibly a reversible error until April 2024, when this Court handed down Heidrich [.226 AD3d 1096]. Defendant’s trial counsel further stated that he “had not researched the issue before . . . trial” and that the “failure to object was not a result of any strategy on [his] part.” Although the People contend that the leading case on the anonymous jury issue existed prior to defendant’s trial and had not been expanded upon by Heidrich, the People acknowledge on appeal that “the empaneling of an anonymous jury in violation of CPL 270.15 constitutes a per se denial of a defendant’s right to a fair trial that cannot be subjected to harmless error analysis.” Indeed, a single error may qualify as ineffective assistance where it “compromise[s] a defendant’s right to a fair trial” … , particularly where, like here, the jurors were only identified by numbers and the record fails to reveal whether their names were ever provided to defense counsel — “which materially heightens the risk of prejudice” … . Accordingly, under the unique circumstances of this particular case and where the legal basis for the motion is undisputed through sworn allegations (see CPL 440.30 [3]), we substitute our discretion for that of the motion court and grant defendant’s motion to vacate the judgment of conviction … . As such, remittal for a new trial is required. People v Rahaman, 2026 NY Slip Op 02696, Third Dept 4-30-26

Practice Point: Defense counsel’s failure to object to the empaneling of an anonymous jury can amount to ineffective assistance and warrant a new trial in the absence of preservation.

 

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DEFENDANT’S FUNDAMENTAL RIGHT TO BE PRESENT AT RESENTENCING WAS VIOLATED, DESPITE DEFENSE COUNSEL’S STATEMENT THAT DEFENDANT’S PRESENCE WAS NOT NECESSARY (THIRD DEPT).

The Third Department, remitting the matter for resentencing, determined defendant was denied his fundamental right to be present at resentencing. Defense counsel told the court defendant’s presence was not necessary:

… [A]s to defendant’s assertion that his fundamental right to be present at resentencing was violated, we agree. Here, County Court … received a letter from DOCCS informing the court that defendant’s two sentences of 2 to 4 years for the underlying grand larceny convictions were not in compliance with state law, and, therefore, an amendment was required. The record reflects that defendant was not produced at either the preceding conference or the resentencing proceeding. The record merely indicates that defense counsel stated, orally and in writing, that defendant’s presence was not necessary, yet there is no acknowledgment that defendant was even aware of the resentencing proceeding. As such, defendant’s fundamental right to be present at his resentencing was violated, and the matter must be remitted to County Court for resentencing on the grand larceny convictions (see CPL 380.40…). People v Cobbins, 2026 NY Slip Op 02695, Third Dept 4-30-26

Practice Point: A defendant has a fundamental right to be present at resentencing. The error need be preserved and survives defense counsel’s statement that defendant’s presence is not necessary.

 

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THE JUDGE’S LAW CLERK, WHO REVIEWED DEFENDANT’S MOTION TO VACATE HIS CONVICTION, MAY HAVE PARTICIPATED IN DEFENDANT’S PROSECUTION; TO AVOID THE APPEARANCE OF IMPROPRIETY, THE DENIAL OF THE MOTION WAS REVERSED (THIRD DEPT).

The Third Department, reversing the denial of defendant’s motion to vacate his conviction (CPL 440.10), determined the judge’s law clerk who reviewed the motion may have been involved in the defendant’s prosecution:

“A judge must always avoid even the appearance of impropriety and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality” … . As an extension of the judge that they serve, “a law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge’s own exercise of the judicial function” … . Indeed, law clerks serve as “[n]on-judges who perform judicial functions within the judicial system” … , and therefore a law clerk’s conflict may require the judge they serve to “disqualify in a proceeding in which the judge’s impartiality ‘might reasonably be questioned’ ” … . Although such disqualification is not automatic, a judge must insulate their law clerk from all matters in which the law clerk had any personal involvement as an attorney during the law clerk’s prior employment and disclose the law clerk’s involvement and insulation to the parties — “even where the law clerk’s involvement in the matter consisted of only a single court appearance” … . In doing so, a judge must prohibit their law clerk from participating in any way with the proceeding, including conferencing, performing legal research or drafting decisions … . The failure to do so constitutes reversible error … . People v Dickinson, 2026 NY Slip Op 02694, Third Dept 4-30-26

Practice Point: Here the “appearance of impropriety” created by the possibility the judge’s law clerk participated in defendant’s prosecution, required reversal of the denial of defendant’s post-trial motion.

 

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PLAINTIFF, AN EMERGENCY MEDICAL TECHNICIAN (EMT), AFTER A COMPLAINT MADE BY A PATIENT TO THE DEFENDANT DEPARTMENT OF HEALTH, WAS SERVED WITH A NOTICE OF HEARING AND A STATEMENT OF CHARGES INDICATING HIS EMT LICENSE COULD BE REVOKED; PLAINTIFF SOUGHT A DECLARATION HE WAS ENTITLED TO A JURY TRIAL PURSUANT TO THE US AND NY CONSTITUTIONS; SUPREME COURT AGREED BUT THE THIRD DEPARTMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mcshan, rejected plaintiff’s argument that he was entitled to a jury trial pursuant to the Seventh Amendment of the US Constitution, or, alternatively pursuant to Article I, section 2 of the NY Constitution. Plaintiff is an Emergency Medical Technician (EMT) who responded to a call that a man (the patient) had fallen and could not get up. According to a witness, plaintiff thought the patient was faking, ridiculed him and offered only minimal assistance. The patient submitted a complaint to the defendant (the Department of Health). The defendant served plaintiff with a notice of hearing and statement of charges indicating plaintiff may be subject fines and revocation of the EMT license. Plaintiff then sued defendant seeking a declaration that he was entitled to a jury trial:

The Seventh Amendment to the US Constitution preserves the right of trial by jury in suits at common law where the value of the controversy exceeds $20 (see US Const, 7th Amend). Longstanding precedent from the Supreme Court of the United States holds that the Seventh Amendment “applies only to proceedings in courts of the United States, and does not in any manner whatever govern or regulate trials by jury in state courts, or the standards which must be applied concerning the same” … . * * *

The NY Constitution provides that “[t]rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever” (NY Const, art I, § 2). * * *

… [P]laintiff asserts that defendant, in essence, seeks to punish him for tortious conduct through the imposition of a civil penalty, which traditionally entailed a jury trial … . What plaintiff fails to directly confront, however, is that the nature of this proceeding is predicated on a violation of the statutory scheme that regulates plaintiff’s professional license and that the remedies sought are tethered thereto. … Specifically, Public Health Law article 30 places the responsibility on defendant to regulate the provision of emergency medical services in the state (see Public Health Law §§ 3000-3034) and, in furtherance of that responsibility, defendant has promulgated regulations governing the training, examination and licensing of EMTs … .Ball v New York State Dept. of Health, 2026 NY Slip Op 02494, Third Dept 4-23-26

Practice Point: Plaintiff, an EMT, after a complaint from a patient, was facing a Department of Health hearing at which his EMT license could be revoked. Plaintiff unsuccessfully sought a declaration that he was entitled to a jury trial pursuant to the Seventh Amendment of the US Constitution and Article I, section 2 of the NY Constitution.

 

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THE JUDGE MADE NO FINDINGS TO SUPPORT EMPANELING AN ANONYMOUS JURY; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s convictions, determined the judge committed reversible error by empaneling an anonymous jury without any apparent justification (juror safety for example). In addition, the Third Department noted that the judge never ruled on an oral renewal of a motion to suppress:

… [P]rospective jurors were identified only by numbers and the record is devoid of proof that their names were ever provided to defendant, which materially heightens the risk of prejudice … . Additionally, County Court withheld prospective jurors’ names without making any findings on the record or articulating a case-specific justification for departing from the procedure mandated by CPL 270.15, explaining only that prospective juror identities were withheld “because of confidentiality.” The record does not reflect any concern regarding juror safety, intimidation or interference, nor any circumstances that would otherwise warrant the use of an anonymous jury … . Additionally, we are not persuaded by any of the reasons suggested by the People at oral argument. We thus exercise our interest of justice jurisdiction, reverse and remit for a new trial. People v Cassell, 2026 NY Slip Op 02173, Third Dept 4-9-26

Practice Point: Here the trial judge’s failure to place on the record the reasons for empaneling an anonymous jury required reversal and a new trial in the interest of justice.

 

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THE TRIAL JUDGE DID NOT FOLLOW THE REQUISITE PROCEDURE FOR A BATSON INQUIRY; MATTER REMITTED TO ALLOW THE JUDGE TO RULE ON WHETHER THE PROSECUTOR’S REASON FOR EXCLUDING A JUROR WAS PRETEXTUAL; THE APPEAL WAS CONSIDERED DESPITE A FAILURE TO PRESERVE THE ERROR (THIRD DEPT).

The Third Department, remitting the matter to allow the trial judge to make a “Batson” finding, determined that the judge did not follow the required “Batson” procedure. The issue was considered despite the failure to preserve the error:

It is uncontested that defendant triggered a Batson challenge when he objected to the People’s peremptory challenge of the only two jurors who were perceived by defendant to be of the same racial group — satisfying step one … . Although the prosecutor offered a race-neutral reason for each juror at step two, County Court merged the step two and three requirements by immediately denying the objection without first allowing defense counsel to make an argument that the reasons were pretextual, thereby “squeez[ing] the process into a functional bypass of the key, final protocol [the Court of Appeals has] put in place” … . Such “practice falls short of a meaningful inquiry into the question of discrimination” … , particularly because the court’s consideration of pretext cannot be discerned from the record … .

While we are mindful of defense counsel’s failure to preserve this issue, given the magnitude of the error, we take corrective action in the interest of justice because the process here was woefully inadequate to satisfy the safeguards enshrined by Batson to every defendant (see CPL 470.15 [6] [a] …). Therefore, since the issue of pretext is a question of fact for the trial court to assess the prosecutor’s credibility against the challenged juror’s demeanor and language capabilities, which is an inquiry appellate courts are unable to address at step three, “we withhold decision and remit this case to [County] Court to enable the trial judge who presided over this matter to determine whether the race-neutral reason proffered by the People was pretextual” … . People v Duplessis, 2026 NY Slip Op 02170, Second Dept 4-9-26

Practice Point: Here the trial judge did not follow the required steps for determining a Batson challenge to the elimination of a juror by the prosecutor.

 

THE FOIL REQUEST FOR RESPONDENT’S RECORDS FOR ALL CERTIFIED POLICE OFFICERS COULD REVEAL THE IDENTITIES OF UNDERCOVER OFFICERS; THEREFORE THE REQUEST SHOULD HAVE BEEN DENIED; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the reporter’s FOIL request seeking records for all certified police officers from respondent’s central registry of police officers and peace officers should not have been granted because the records include undercover officers:

The in camera submissions reveal that, unlike the state registry, at least one police agency omits from its own public payroll database certain information about certified officers working undercover or in sensitive assignments to protect their safety and preserve confidentiality; again, the police agency submits information about those same officers to the state registry. This distinction in how respondent and a local law enforcement agency account for undercover officers would be evident to one who compares the department’s public payroll database to the list attributed by the state registry to that agency. Simply put, comparing the state registry to a local department’s publicly disclosed payroll database could reveal names of undercover officers that appear on the state registry but not on their employer’s redacted payroll database. Thus, respondent demonstrated that disclosure of the registry could endanger police officers who could be presumptively revealed by name as working undercover, thereby satisfying its burden to trigger the exemption under Public Officers Law § 87 (2) (f). Matter of Munson v New York State Div. of Criminal Justice Servs., 2026 NY Slip Op 02017, Third Dept 4-2-26

 

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A MORE PROBING INQUIRY BY THE JUDGE WAS REQUIRED TO ENSURE THE MENTALLY DISABLED DEFENDANT UNDERSTOOD THE CONSEQUENCES OF HIS ALFORD PLEA, PLEA VACATED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction by Alford plea, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined a more probing inquiry by the judge was required to determine whether the plea was knowing and intelligent. Defendant had been found incompetent to stand trial twice before being found mentally competent to stand trial:

While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … . “People with intellectual disabilities possess diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. . . . These traits render people with intellectual disabilities uniquely vulnerable to injustice within criminal proceedings. . . . [Therefore], a court must account for [a defendant’s] diminished mental capacity in ensuring that any waiver of constitutional rights is knowing, intelligent and voluntary” … .

As defendant was twice determined to be incompetent to stand trial and had received four years of treatment before he was deemed competent to participate in his defense, County Court was aware of defendant’s intellectual disabilities. Notwithstanding the determination that defendant was competent to stand trial, the third psychiatric evaluation report cast serious doubts on defendant’s ability to enter a knowing and voluntary plea. The report indicates that on defendant’s most recent cognitive assessment he “achieved a [f]ull-[s]cale IQ of 59, indicative of abilities consistent with a [m]ild [i]ntellectual [d]isability.” Additionally, he “achieved an [a]daptive [b]ehavior [c]omposite of 68, consistent with [the] upper end of the ‘low’ range of daily living skills.” The psychologist further noted that defendant was “rather immature in his understanding of the severity of his charges and the chances that he could have significant consequences — such as jail time.” More importantly, during the evaluation, defendant repeatedly alleged that his counsel had reassured him that he will not be going to jail and, in fact, “express[ed] strongly held beliefs that he will not be sent to jail due to his personal circumstances of having a disability and being young when the offenses were allegedly committed. These beliefs are likely related to his relative youth and mental health difficulties, several of which make it difficult for [defendant] to relate to others successfully, accept social norms and expectations, or respect interpersonal boundaries. These beliefs are unlikely to change with additional education or training.”

Under these circumstances, “[a] more probing inquiry was warranted here to ensure that defendant understood the constitutional rights he was waiving, given his significant intellectual disability” … . As there is no affirmative showing on the record that defendant understood and voluntarily waived his constitutional rights when he entered his guilty plea, the judgment of County Court convicting defendant of manslaughter in the first degree and sentencing defendant thereon should be reversed, the plea vacated and the matter remitted for further proceedings … . People v Oldorff, 2026 NY Slip Op 02004, Third Dept 4-2-26

Practice Point: Where the defendant is mentally disabled and has previously been found incompetent to stand trial, before accepting a guilty plea, a probing inquiry by the judge is required to ensure the defendant understands the consequences.

 

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ALTHOUGH THE CONVICTIONS WERE SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE THE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).

The Third Department, reversing defendant’s convictions, determined the evidence was legally sufficient but the convictions were against the weight of the evidence:

People’s accomplice theory supporting counts 2 through 7 against defendant was that the video surveillance footage depicted the gun being handed off before the shooting. However, the video footage is dark and pixelated, and the brother’s body obscures part of the interaction, making it impossible to discern whether defendant and the codefendant exchanged a handgun — let alone anything — without resorting to speculation, which cannot be the basis for defendant’s guilt beyond a reasonable doubt … . Nor is there anything in the record to suggest that this codefendant was aware that defendant had a gun, as none of the witnesses testified that he was present when defendant had displayed the gun at the mother’s residence. To this point, the codefendant’s lack of knowledge combined with the testimony that he threatened to return and shoot the victim creates the reasonable inference that he already had access to a gun of his own. Accordingly, given the lack of record support to establish beyond a reasonable doubt that defendant solicited, requested, commanded, importuned or intentionally aided another individual to possess and use a firearm in commission of the offenses charged under counts 2 through 7, we reverse these convictions as against the weight of the evidence … .

Relating to the weapon charges under counts 8 and 9, multiple witnesses testified that defendant was seen with a handgun only while at the mother’s residence. However, since the evidence fails to demonstrate that the shooting was committed with the same gun, it so follows that the record also fails to establish beyond a reasonable doubt that defendant intended to use the gun he was seen with “unlawfully against another” as charged by the indictment (Penal Law § 265.03 [1] [b]). Further, although defendant did not possess the requisite gun permit and was outside of his home or place of business, the People cannot establish operability of the handgun that defendant was seen with at the mother’s residence before the shooting either … . People v Bowden, 2026 NY Slip Op 02003, Third Dept 4-2-26

Practice Point: Consult this decision for an example of convictions supported by legally sufficient evidence but against the weight of the evidence.

 

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ABSENT A MOTION BY A PARTY, SUPREME COURT SHOULD NOT HAVE DISMISSED THE ACTION BASED UPON DEFECTIVE SERVICE (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s motion to vacate the order dismissing the action should have been granted. The court, sua sponte, dismissed the case because of defective service. However, a dismissal on this ground requires a motion by a party. The dissenters argued the order at issue is not appealable and would have dismissed the appeal:

… CPLR 306-b specifies that “[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” (emphasis added). In consideration of this express language, other Departments of the Appellate Division have recognized that a court cannot dismiss a complaint on its own initiative for lack of personal jurisdiction based upon the failure to effect proper service of process … . As the July 2023 order dismissed the underlying action for lack of personal jurisdiction sua sponte, the court erred in doing so absent a motion by one of the parties. On account of that error, the court abused its discretion in denying plaintiff’s instant request that it exercise its discretionary power to vacate that order in the interest of substantial justice … . Plaintiff’s motion seeking to vacate the July 2023 order dismissing the action should therefore be granted and the complaint reinstated. Briggs v Fresenius, 2026 NY Slip Op 01827, Third Dept 3-26-26

Practice Point: A judge cannot, sua sponte, dismiss an action because of defective service. A party must move to dismiss on that ground.

 

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