You are here: / Third Department

Tag Archive for: Third Department

,

DEFENDANT’S “EXCEPTIONAL RESPONSE” TO THE “SEX OFFENDER COUNSELING AND TREATMENT PROGRAM” WARRANTED A DOWNWARD DEPARTURE FROM A LEVEL TWO SEX OFFENDER TO A LEVEL ONE SEX OFFENDER (THIRD DEPT). ​

The Third Department, reversing County Court, determined defendant was entitled to a downward departure from a level two sex offender to a level one sex offender based on his successful participation in sex offender treatment:

… [D]efendant submitted the monthly evaluations prepared by his instructor in his Sex Offender Counseling and Treatment Program. In the six monthly evaluations, defendant was awarded 95 out of a maximum of 96 points available, placing him in the “highly motivated” classification for each month, the highest category. Further, the instructor consistently praised defendant’s participation, including comments that defendant “continues to engage positively in program [and] exceed all program standards,” “continues to excel in program” and “continues to meet [and] exceed all program standards.” Given his nearly perfect score and the positive comments from his instructor, we conclude that defendant has demonstrated, by a preponderance of the evidence, an exceptional response to treatment so as to be a basis for a downward departure … . People v Mikalonis, 2026 NY Slip Op 03210, Third Dept 5-21-26

 

, ,

THE GENERAL MUNICIPAL LAW CANNOT BE INTERPRETED TO ALLOW THE COMPETITIVE BIDDING PROCESS FOR PUBLIC WORKS TO BE CIRCUMVENTED BY “PIGGYBACKING” A NEW PUBLIC WORKS PROJECT ON A PRIOR PUBLIC WORKS PROJECT AWARDED AFTER COMPETITIVE BIDDING (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, determined that the General Municipal Law could not be interpreted to circumvent the competitive bidding process for public works contracts. Here the school district, after a competitive bidding process, had hired Smith Site Development for the replacement of a sewer line and a parking lot at the district’s high school. The district sought to hire Smith again for the heating, ventilation and air conditioning renovations and classroom construction at an elementary school. The district unsuccessfully argued that the General Municipal Law allowed the elementary-school work to be “piggybacked” on the prior sewer-and-parking-lot-contract and thereby avoid the competitive bidding process:

In determining whether General Municipal Law § 103 (16) provides a limited exception to General Municipal Law § 103 (1), or, as the district argues, a broader alternative to that general rule, we begin by observing that while subsection (1) specifically references public works contracts, subsection (16) does not. Although the Legislature could have explicitly identified public works contracts as being subject to the piggybacking provision of subsection (16), it chose not to do so. Instead, by its plain language, subsection (16) permits piggybacking only in a specific set of circumstances that is, when it comes to purchasing certain specified items (“apparatus, materials, equipment or supplies”) or arranging for services related to those specific items (General Municipal Law § 103 [16]). This statutory structure signifies that piggybacking applies only in certain limited circumstances, and we agree with Supreme Court that the omission of language referencing public works contracts from the piggybacking provision suggests that the Legislature did not intend to allow them to be exempt from competitive bidding … . Matter of Daniel J. Lynch, Inc. v Board of Educ. of the Me.-Endwell Cent. Sch. Dist., 2026 NY Slip Op 03209, Third Dept 5-21-26

 

, , ,

AN IN DEPTH ANALYSIS OF THE JURISDICTIONAL PRIORITY ISSUES RAISED IN A CUSTODY MATTER REGARDING A NAVAJO CHILD, BORN TO A NAVAJO MOTHER IN NEW MEXICO, LIVING ON THE NAVAJO NATION RESERVATION IN UTAH, WITH FATHER RESIDING IN NEW YORK (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mackey, grappled with the complex procedural and jurisdictional issues surrounding the custody of a Navajo child, born in New Mexico to a Navajo mother, living on the Navajo Nation reservation in Utah, and residing with father in New York. The issue is jurisdictional priority at the convergence of the Indian Child Welfare Act (ICWA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The opinion is far too complex to summarize here.  Matter of Kody II. v Shaunta JJ., 2026 NY Slip Op 03044, Third Dept 5-14-26

 

,

THE ALBANY LOCAL LAW WHICH GIVES THE COMMISSIONER OF THE DEPARTMENT OF PUBLIC SAFETY EXCLUSIVE AUTHORITY TO HANDLE POLICE DISCIPLINARY MATTERS IS VALID (THIRD DEPT).

The Third Department, in an extensive full-fledged opinion by Justice Corcoran, determined an Albany local law gave the Commissioner of the Department of Public Safety the exclusive authority to handle police disciplinary matters. The opinion is complex and cannot be fairly summarized here. Matter of City of Albany, N.Y. (Albany Police Benevolent Assn.), 2026 NY Slip Op 03038, Third Dept 5-14-26

 

,

HERE COUNTY COURT DID NOT OFFER ANY RATIONALE FOR EMPANELING AN ANONYMOUS JURY AND NONE IS APPARENT FROM THE RECORD; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s convictions and ordering a new trial, determined the judge should not have empaneled an anonymous jury:

We turn next to defendant’s argument that County Court erred by empaneling an anonymous jury — that is, by referring to prospective jurors “only by numbers and initials, with neither the attorneys nor [the] spectators knowing the jurors’ names.” On that, the record clearly bears out that County Court improperly empaneled an anonymous jury in clear violation of CPL former 270.15 … . However, acknowledging that no objection was raised before the trial court, defendant first argues that doing so constituted a mode of proceedings error. As we recently determined on two separate occasions, that contention is without merit … . We may nevertheless reach the issue as a matter of our discretion in the interest of justice (see CPL 470.15 [6] [a]). In assessing whether it is appropriate to do so, “we consider the totality of the circumstances, including the nature of the statutory violation, the explanation offered by the trial court and the potential for prejudice to the defendant” … ..

We agree with defendant’s contention that reversal is warranted based upon the totality of the circumstances. Although the empaneling of an anonymous jury may be appropriate under certain limited circumstances, where, as here, there is “no ‘factual predicate for the extraordinary procedure,’ ” to do so was error … . Indeed, there is no dispute that County Court failed to provide any rationale for doing so, and “[t]he 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” … . Moreover, unlike those cases where defense counsel was made aware of the juror names … , the record is devoid of any indication that such occurred here, “which materially heightens the risk of prejudice” … . We therefore exercise our interest of justice jurisdiction, reverse and remit for a new trial. People v Zakrzewski, 2026 NY Slip Op 03029, Third Dept 5-14-26

Practice Point: Although improperly impaneling an anonymous jury is not a mode of proceedings error, and no objection was raised to the anonymous jury at trial, because there appears to have been no rationale for using an anonymous jury, the Third Department, in the interest of justice, reversed defendant’s convictions and ordered a new trial.

 

HERE THE INDICTMENT PURPORTED TO CHARGE CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE THIRD DEGREE, WHICH REQUIRES POSSESSION OF 1/2 OUNCE OR MORE, BUT THE FACTUAL RECITATION IN THE INDICTMENT ASSERTED POSSESSION OF 1/8 OUNCE OR MORE; THE INDICTMENT IS JURISDICTIONALLY DEFECTIVE AND MUST BE DISMISSED (THIRD DEPT).

The Third Department, reversing County Court, determined the indictment was jurisdictionally defective and must be dismissed. The indictment purported to charge criminal possession of a controlled substance in the third degree, which requires possession of 1/2 ounce or more, but the factual recitation in the indictment asserted defendant possessed 1/8 ounce or more:

As the factual allegations effectively negated an essential element of the particular crime sought to be charged (i.e., the requisite aggregate weight of 1/2 ounce or more) and altered the theory upon which the People proceeded in prosecuting defendant, the indictment was jurisdictionally defective … . Regardless of statements made by defendant during the plea allocution regarding the aggregate weight of the substance he possessed, such statements are insufficient to cure the defects in the indictment. As the indictment negated an essential element of the purported crime charged, we are constrained to reverse the conviction and dismiss the indictment as jurisdictionally defective … . People v Head, 2026 NY Slip Op 03028 Third Dept 5-14-26

Practice Point: Here a discrepancy between the amount of a controlled substance required by the statute and the amount asserted in the factual recitation in the indictment rendered the indictment jurisdictionally defective.

 

, ,

ALTHOUGH RPTL 421-A DOES NOT EXPLICITLY ALLOW JUDICIAL REVIEW OF THE COMPTROLLER’S TAX RULINGS, THE CASE LAW SUPPORTS THE AVAILABILITY OF ARTICLE 78 REVIEW; THEREFORE THE STATUTE IS NOT UNCONSTITUTIONAL (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined RPTL 421-a (16) (c) (x) does not foreclose judicial review of the Comptroller’s rulings concerning certain tax benefits available to property developers who provide affordable housing and pay construction workers at the statutory rate. Although the statute does not explicitly allow judicial review, the case law supports the conclusion that Article 78 review is available:​

… Supreme Court has broad authority to provide relief from an administrative determination in a CPLR article 78 proceeding, both during the pendency of the proceeding and following the completion of judicial review … . During the pendency of such a proceeding, the court may “stay . . . the enforcement of [the] determination under review” (CPLR 7805 …). Correspondingly, once judicial review is complete, the reviewing court is authorized to “annul or confirm . . . or modify” the determination “in whole or part” and may “direct. . . specified action by the respondent” (CPLR 7806). The court’s authority under CPLR 7806 to direct specified action by the respondent agency encompasses “any . . . directions needed to secure to the petitioner the [a]rticle 78 relief ordered” and a court’s judgment embodying those directions “is enforceable by contempt proceedings” … . In other words, if a reviewing court found the Comptroller’s final determination under RPTL 421-a (16) (c) (x) to have been made in violation of lawful procedure, affected by an error of law, arbitrary and capricious or lacking in substantial evidence (see CPLR 7803 [3], [4]), it would have broad remedial power under CPLR 7806 to annul the Comptroller’s determination, which would, in effect, render the underlying administrative judgment unenforceable, and could also direct the Comptroller to take action to secure the vacatur of the administrative judgment. Matter of Bldg 44 Devs. LLC v State of New York, 2026 NY Slip Op 02898, Third Dept 5-7-26

Practice Point: Even where a statute does not explicitly allow judicial review, the case law may support Article 78 review, rendering the statute constitutional.

 

, ,

THE JUDGE’S ERROR IN REFUSING TO GRANT A BRIEF ADJOURNMENT WHEN THE PEOPLE BELATEDLY OFFERED A REBUTTAL WITNESS HAD A “SPILL-OVER-EFFECT” TAINTING THE OTHER COUNTS; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined (1) the court erred in not granting the defense an adjournment when the People belatedly offered rebuttal testimony, and (2) the “spill-over-effect” of that error tainted the convictions:

The trial court may, in the exercise of its discretion, receive belatedly disclosed rebuttal testimony, ” ‘but before doing so, it must, upon application of the … . We therefore conclude that County Court erred when, after granting the prosecution’s request to offer rebuttal proof on Monday, it then denied defendant’s application for any adjournment before the prosecution called its rebuttal witness … . Given that proof of defendant’s guilt without the rebuttal witness’ testimony was “not overwhelming,” the error cannot be deemed harmless … .

In determining whether an error in the proceedings relating to one count requires reversal of the conviction of other jointly tried counts, we apply “[s]pillover analysis” and evaluate “the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . “[I]f there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way,” reversal is required (id. [internal quotation marks and citations omitted]). Because resolution of all three counts here hinged on the jury’s assessment of the victims’ credibility and the veracity of the defense claims, there is a reasonable possibility that the decimation of defendant’s alibi by the rebuttal evidence meaningfully influenced the jury’s guilty verdict on the 2018 count … . The rebuttal proof, received without affording defendant a brief adjournment to investigate, cast defendant’s alibi witness as unscrupulous and incredible. Under these unusual circumstances, we reverse defendant’s convictions and order a new trial on all counts … . People v Shaver, 2026 NY Slip Op 02895, Second Dept 5-7-26

Practice Point: An error affecting the proof of one count may have a “spill-over-effect” and taint the remaining counts, requiring a new trial.

 

, , , , ,

THE EDUCATION LAW PRIVILEGE WHICH PROTECTS HOSPITAL QUALITY-REVIEW PROCEEDINGS DID NOT APPLY TO REPORTS ABOUT UNSAFE WORKING CONDITIONS AT THE HOSPITAL; PLAINTIFF IN THIS WRONGFUL TERMINATION ACTION WAS ENTITLED TO DISCOVERY OF THE REPORTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff in this wrongful termination and retaliation action was entitled to discovery of so-called RL6 reports addressing unsafe working conditions. Defendant hospital claimed the documents were privileged under Education Law § 6527 (3) and the Patient Safety and Quality Improvement Act of 2005 (42 USC § 299b-21 et seq. [hereinafter PSQIA]):

Plaintiff was employed as a nursing assistant and technician within defendant’s secure unit for patients with behavioral health and psychiatric conditions. He commenced this action for wrongful termination and retaliation under Labor Law §§ 740 and 741, claiming that defendant unlawfully fired him after he reported unsafe workplace practices and conditions. During discovery, plaintiff demanded copies of his statements to defendant, including his June 2022 report of safety concerns submitted to defendant’s electronic reporting system. Plaintiff also requested the parties’ communications about the secure unit and defendant’s responses to prior related complaints or concerns. * * *

“[A] party does not obtain the protection of Education Law § 6527 (3) merely because the information sought could have been obtained during the course of a hospital review proceeding[.] . . . The exemption applies only where the information was in fact so obtained” … . In short, the administrator’s conclusory affidavit is insufficient to satisfy defendant’s burden under Education Law § 6527 (3) … . Moreover, defendant conceded, both in its brief and at oral argument, that the RL6 reports were not submitted to a quality assurance or peer review committee. …

Assuming, without deciding, the doubtful proposition that PSQIA applies to this state law claim, defendant failed to demonstrate that the RL6 reports at issue constitute privileged patient safety work product. Adams v Bassett Healthcare Network, 2026 NY Slip Op 02706, Third Dept 4-30-26

Practice Point: Consult this decision for insight into the scope of the Education Law privilege protecting hospital quality-review proceedings. Here the privilege did not extend to employee reports about unsafe working conditions.

 

, , , ,

UPON RESPONDENT’S FAILURE TO APPEAR, FAMILY COURT DISMISSED RESPONDENT’S COUNSEL AND HELD THE ORDER-OF-PROTECTION HEARING IN RESPONDENT’S ABSENCE; RESPONDENT WAS DENIED DUE PROCESS OF LAW; ORDER VACATED (THIRD DEPT).

The Third Department, reversing Family Court, vacated the order of protection issued upon respondent’s “default” based on the denial of respondent’s due process rights:

Petitioner commenced this proceeding in November 2023 seeking an order of protection against respondent. After an initial appearance and subsequent conferences at which the parties variously appeared virtually, in person or through counsel, respondent failed to appear for the April 2024 in-person hearing. Family Court directed respondent’s counsel to leave the courtroom, at which point respondent’s counsel offered to have respondent appear virtually, asserting that respondent was in “hiding” in light of criminal charges filed against petitioner in connection with her alleged stalking of, and firing a rifle at, respondent in August 2023. The court implicitly denied respondent’s request by again directing respondent’s counsel out of the courtroom. The hearing proceeded, during which petitioner testified and was subject to cross-examination by the attorney for petitioner’s children. …

Typically, “[a] party seeking to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense to the underlying claim” … . “No such showing is required, however, where a party’s fundamental due process rights have been denied” … . In this case, respondent’s counsel attended in person evidently ready to proceed, offered an excuse for respondent’s nonappearance and provided an alternate means to move forward in his absence … . Respondent’s counsel made no application to withdraw, and Family Court did not relieve respondent’s counsel, and thus respondent’s attorneys remained counsel of record when they were dismissed from the courtroom without explanation (see CPLR 321 [b] …). The court’s atypical conduct in that regard, coupled with the court’s choice to decline available options to proceed in respondent’s absence, deprived respondent of his opportunity to be heard (see CPLR 321 [a] …). Matter of April V. v Jonathan U., 2026 NY Slip Op 02702, Third Dept 4-30-26

Practice Point: An order issued upon a party’s default may be vacated when the party’s due process rights were violated by the judge. Here the judge ordered the party’s counsel to leave and held the hearing in the party’s absence after the counsel explained the party’s absence and offered to proceed virtually.

 

Categories

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

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

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