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PETITIONER, A TRANSGENDER INDIVIDUAL, WAS ENTITLED, FOR PERSONAL SAFETY REASONS, TO THE SEALING OF THE RECORD OF HER NAME-CHANGE PROCEEDING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, a transgender individual, was entitled, for her personal safety, to the sealing of the record of her name-change proceeding:

We analyzed Civil Rights Law § 64-a in Matter of Cody VV. (Brandi VV.) (226 AD3d 24 [3d Dept 2024]). There, Supreme Court — the same justice — denied an applicant’s request to seal the record of the applicant’s name-change proceeding … . Reversing the court’s denial and ordering the applicant’s record sealed, we observed, in sum and substance, that the relevant statutory language reflects the Legislature’s determination that transgender individuals face threats to their personal safety that are real, constant and everywhere … . Thus, only in an “extraordinary” case will there be a “substantial basis” to find that an open court record of a name change proceeding would not place a transgender applicant’s safety at risk … .

In a “customary” case like this one, protecting the applicant from the threat of harm posed by an open court record of a name change proceeding necessarily takes priority over the public’s ability to access that court record … . To reverse those priorities is to intrude upon the policymaking authority of the Legislature. To deny a sealing request based upon those inverted priorities is to abuse the limited judicial discretion available under Civil Rights Law § 64-a. To decline to seal the record despite the applicant’s showing of jeopardy is to place the applicant at risk of the very harms the statute is meant to guard against … .

​… [P]etitioner affirmed her transgender status and that she was seeking to change her name to one that reflects her female gender identity, which is the name she uses in her personal and professional life. She expressed her fear that public access to her name change would disclose her transgender status and place her at increased risk of hate crimes, harassment and other discrimination. In view of the totality of circumstances … , petitioner has demonstrated that she is entitled to have the record of her name change proceeding sealed pursuant to Civil Rights Law § 64-a … . Matter of Kieran B., 2025 NY Slip Op 06006, Third Dept 10-30-25

Practice Point: In Civil Rights Law 64-a, the legislature recognized the personal safety issues raised when a transgender individual seeks a name-change. Therefore, sealing of the name-change record reflects the legislative intent and should be the general rule.

 

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THE JUDGE READ THE WRONG DEFINITION OF THE CHARGED OFFENSE TO THE JURY; NEW TRIAL ON THAT CHARGE ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s attempted robbery first degree conviction and ordering a new trial on that count, determined County Court provided the jury with the wrong definition of the offense:

Defendant was charged with attempted robbery in the first degree pursuant to Penal Law § 160.15 (2), defined as forcibly stealing property while armed with a deadly weapon. When the court instructed the jury on this count, it initially made reference to the requirement of being armed with a deadly weapon. However, when thereafter summarizing the elements of this crime, the court omitted the deadly weapon element and instead substituted in its place the element of causing serious physical injury to the victim, which is a different theory of robbery in the first degree … . This error was repeated by the court when the jury asked for the definitions of the crimes to be read back. Under these circumstances, the jury was left to consider an internally inconsistent definition of attempted robbery. Given that ” ‘the charge, read as a whole against the background of the evidence produced at trial, likely confused the jury regarding the correct rules to be applied in arriving at a decision’ ” … , the court’s error was not harmless and remittal for a new trial on this count is necessary … . People v Smith, 2025 NY Slip Op 05847, Third Dept 10-23-25

Practice Point: Here the judge’s reading the wrong definition of the charged offense to the jury required a new trial on that charge.

 

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THE PROOF OF ALL THE CHARGES, INCLUDING THE DEPRAVED INDIFFERENCE MURDER OF A TWO-YEAR-OLD CHILD, WAS SUFFICIENT TO SUPPORT THE CONVICTIONS; HOWEVER THE IMPROPER ADMISSION OF MOLINEUX EVIDENCE AND OTHER EVIDENTIARY ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined that the proof was sufficient to support all the convictions, including depraved indifference murder of a two-year-old child. Defendant claimed the child fell from a bunk bed. But the injuries were catastrophic and included a depressed skull fracture. A new trial was required because of evidentiary errors by the judge, including the admission of prior crimes and bad acts as Molineux evidence:​

Prior to trial, County Court partially granted the People’s Molineux application to the extent of allowing testimony pertaining to defendant’s prior acts of domestic violence and aggression toward the mother, as well as his 2011 conviction of aggravated driving while intoxicated (hereinafter DWI) with a minor in the car. … The People elicited trial testimony from the mother about a December 2017 incident in which defendant became explosively angry while drinking and “trash[ed]” her house; however, “[n]othing was physical” on that occasion. The mother also testified about a January 2018 incident in which defendant was physically violent, revealing that he had repeatedly punched her in the face and in the arm on that occasion. The People were allowed to introduce photographs of the bruises the mother sustained during the January 2018 incident. The evidence regarding defendant’s DWI conviction was referenced during his interview at the Sheriff’s Department in connection with the underlying incident, which was published to the jury.

The December 2017 incident of aggression did not involve physical violence, as alleged here, and was not probative of any issue in this case … . … [T]he photographs depicting the mother’s injuries from the January 2018 incident should not have been admitted into evidence, as they provided the ]jury with a visualization of defendant’s past violent conduct and were extremely prejudicial in the context of a prosecution requiring proof that defendant acted with a level of depravity sufficient to sustain a conviction under Penal Law § 125.25 (4) … . … The evidence pertaining to defendant’s 2011 DWI conviction also should not have been admitted, as it was not probative of any issue in the case, did not fit within any recognized Molineux exception, and was unduly prejudicial since it involved a different child and tended to suggest to the jury that defendant was previously reckless with a minor in his care while consuming alcohol. Since the proof of defendant’s guilt was entirely circumstantial and was not overwhelming, these improper Molineux rulings cannot be considered harmless … . People v Bohn, 2025 NY Slip Op 05846, Third Dept 10-23-25

Practice Point: Consult this decision for insight into what is and what is not admissible prior crime and bad-act (Molineux) evidence in a murder trial.

 

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THE PEOPLE’S FAILURE TO TURN OVER TO THE DEFENSE A VIDEO CONTAINING IMPEACHMENT MATERIAL PRIOR TO FILING A CERTIFICATE OF COMPLIANCE RENDERED THE CERTIFICATE OF COMPLIANCE AND THE STATEMENT OF READINESS ILLUSORY; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment on speedy trial grounds, in a full-fledged opinion by Justice Pritzker, determined the People were required to turn over a child advocacy center (CAC) video before filing a certificate of compliance (COC) and statement of readiness (SOR). The CAC video was not turned over until 20 days before trial:

… [T]he People conceded that the CAC video contained impeachment evidence based upon certain statements made by the victim … , and also that the CAC video had been turned over by the CAC to law enforcement and, as such, was in the People’s possession as of January 22, 2020 … . Despite this, the CAC video was not turned over to defendant until September 1, 2021, 20 days before trial, even though the People filed an earlier COC and SOR in October 2020. Specifically, the COC dated October 16, 2020 referenced an index detailing the materials that had been disclosed to defendant as of that date. This index reveals two compliance reports, one dated February 28, 2020 and the other dated October 1, 2020. As relevant here, the February 28, 2020 compliance report lists a document titled “CAC Chain of Custody – 01.22.2020.pdf” as having been turned over to defendant. There is no dispute that, while this chain of custody form for the CAC video was included in discovery, the video itself was not. * * *

… [H]ere, we are faced with a situation where the People certified, allegedly in good faith, that “the prosecutor has disclosed and made available all known material and information subject to discovery” … , despite knowing full well that they were intentionally withholding the CAC video. As such, we find that the People did not file the October 2020 COC in good faith as they did not make “all known material and information subject to discovery” available to defendant … . Further compounding their error, the People did not give defendant any notice of this withholding, either by withholding the CAC video and requesting a protective order … in the first instance, or, later, giving defendant notice that the CAC video was purportedly being withheld so as not to disclose any identifying information of the victim … . … [B]ecause we find that the October 2020 COC and SOR were illusory, the People did not validly announce readiness for trial until September 2021, which the People concede would be outside of the applicable six-month CPL 30.30 time frame. Thus, this Court must dismiss the indictment … . People v Mazelie, 2025 NY Slip Op 05849, Third Dept 10-23-25

Practice Point: Here the People’s failure to turn over impeachment evidence before filing the certificate of compliance rendered the certificate illusory and required dismissal of the indictment.

 

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DEFENDANT RAISED QUESTIONS ABOUT THE VOLUNTARINESS OF HIS PLEA TO FIRST DEGREE MURDER SUFFICIENT TO WARRANT A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant had raised questions about the voluntariness of his plea to first degree murder (for killing his parents) which required a hearing on his motion to vacate his plea. Defendant was sentenced to life imprisonment without parole. In his motion to vacate his plea, defendant alleged his attorneys told him that the death penalty for first degree murder was going to be overturned and thereafter his sentence could be reduced. Defendant also alleged his guilty plea was induced in part by his cousin’s offer to pay him $10,000 if he pled guilty and renounced any claim to his parents’ estate:

According to defendant, after he had received the offer of payment, he remained reticent to accept the plea offer; however, by his telling, consideration of that payment together with his averment as to trial counsel’s misadvice of a potential reduced sentence ultimately persuaded him to accept the offer to plead guilty and be sentenced to life without parole. In support of that account, motion counsel and defendant’s investigator recounted trial counsel’s representation that defendant’s initial objection to accepting the plea offer diminished once the $10,000 payment had been offered. In support of defendant’s motion, he presented further evidence that $10,000 was paid to him after he entered his plea by way of two separate $5,000 checks, one of which was provided by his cousin. The evidence of that payment and the corresponding account that it influenced defendant’s deliberations as to whether to accept the plea, considered alongside the misadvice that he was purportedly provided, create an issue of fact as to whether he was subjected to something more “than the type of situational coercion faced by many defendants who are offered a plea deal” … .

All told, we find that defendant’s submissions in support of his motion are sufficient to raise an issue of fact warranting a hearing with respect to deficiencies in his representation … and the effect on the voluntariness of his plea … . …  With respect to both his claims, defendant bears the burden of establishing his entitlement to relief by a preponderance of the evidence (see CPL 440.30 [6]). As to his contention of deficient representation, defendant will bear the burden of proving that he was misadvised about the potential to have his sentence reduced in the future if he took the People’s plea offer and, but for that misadvice, there is a reasonable probability that he would have chosen to proceed to trial … . … [A]t this juncture the question “is whether defendant has made sufficient allegations to warrant an evidentiary hearing, not whether defendant has satisfied his burden of proof” … . People v Mower, 2025 NY Slip Op 05851, Third Dept 10-23-25

Practice Point: Consult this decision for insight into the allegations and proof which will be sufficient to require a hearing on whether defendant’s guilty plea was voluntarily entered in the context of a post-appeal motion to vacate the judgment of conviction.

 

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DEFENDANT WAS NOT NOTIFIED THAT IF HE FAILED TO PAY RESTITUTION HIS SENTENCE WOULD BE ENHANCED; ENHANCED SENTENCE VACATED AND AGREED-UPON SENTENCE IMPOSED (THIRD DEPT).

The Third Department, vacating defendant’s enhanced sentence and imposing the agreed-upon sentence, determined defendant was not given notice that his failure to pay restitution would result in an enhanced sentence. The agreed sentence was 2 to 6 years and the enhanced sentence was 4 to 12 years:

Defendant argues that County Court erred in imposing a prison sentence in excess of that promised in the plea agreement and requests that this Court resentence him to the agreed-upon term of 2 to 6 years in prison, without remanding the matter to County Court. Defendant contends that while payment of restitution was contemplated prior to sentencing, County Court never advised him that if he failed to pay restitution by the sentencing date it could impose an enhanced prison sentence. We agree. Defendant’s argument survives his unchallenged appeal waiver … . However, given that the court’s enhanced sentence was pronounced at the very end of the sentencing proceeding, without advance warning that it was considering an enhanced sentence or even a clear finding that defendant had violated an express condition of the plea agreement, we find that he had no practical ability to raise an objection and, thus, preservation was not required … . Under settled law, “the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence, and, conversely, a sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed” … . People v Nestler, 2025 NY Slip Op 05852, Third Dept 10-23-25

Practice Point: Consult this decision for an explanation of the criteria which allow a judge to ignore an agreed-upon sentence and impose an enhanced sentence.​

 

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PLAINTIFF WAS SEVERELY INJURED IN A FORKLIFT ACCIDENT AND BROUGHT THIS ACTION ALLEGING DEFECTIVE DESIGN; THERE WAS A DEFENSE VERDICT WHICH WAS REVERSED BECAUSE SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN ADMITTED AND SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN STRUCK (THIRD DEPT).

The Third Department, reversing the judgment finding the defendant’s forklift was not defectively designed, determined the admission and exclusion of expert evidence required a new trial. Plaintiff’s leg was crushed when the forklift he was operating struck a support beam in a warehouse. A portion of his leg was amputated. Defendant’s expert’s analysis was based in part on statistics that did not involve forklift-accidents and therefore was inadmissible. Plaintiff’s expert’s testimony about the need for future medical treatment was competent and should not have been struck:

Because the underlying data was specific to accidents involving defendant’s forklifts and plaintiff’s expert also relied upon and testified to that database, we find that Supreme Court properly allowed Marais [the defense expert]  to testify as to the rate of injuries sustained in the operation of defendant’s forklifts as computed from defendant’s database. However, the court abused its discretion in permitting testimony related to the utilization of the wider category of accidents involving “industrial truck and tractor operators,” as defendant failed to establish that the underlying conditions of those accidents were substantially similar to the facts presented here … . The core of Marais’ testimony was that the rate of injuries involving defendant’s forklifts was significantly lower than other industrial-related injuries. Even crediting that the federal database Marais utilized to make this comparison included forklift injuries, it also included a variety of other dissimilar industrial vehicles. In addition, there was no way to determine how many of the reported injuries therein were the result of forklift operations or, equally as important, the underlying conditions precipitating those accidents. * * *

… Supreme Court abused its discretion by striking Root’s (plaintiff’ medical expert’s] testimony and then limiting certain aspects of Thomas’ [plaintiff’s economist’s] testimony regarding plaintiff’s future medical expenses because the testimony was supported by “competent proof of necessary, anticipated medical costs through [a qualified physician] and [an] expert economist” … . Johns v Crown Equip. Corp., 2025 NY Slip Op 05856, Third Dept 10-23-25

Practice Point: Here plaintiff was injured in a forklift accident. Statistical evidence offered by defendant’s expert which included data that did not relate to forklifts should not have been admitted. To be admissible, statistical evidence must relate to substantially similar accidents.

Practice Point: Here the evidence of future medical procedures and costs offered by plaintiff’s medical expert and economist was competent and should not have been struck.

 

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THE SURETY BOND, A CONTRACT, WAS UNAMBIGUOUS AND MADE NO MENTION OF PREJUDGMENT INTEREST; THE SURETY THEREFORE WAS NOT OBLIGATED TO PAY PREJUDGMENT INTEREST; THE ARGUMENT THAT CPLR 5001 MAKES PAYMENT OF PREJUDGMENT INTEREST MANDATORY WAS REJECTED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined that the terms of the surety bond governed whether the surety was obligated to pay prejudgment interest. Because the bond, a contract, did not mention prejudgment interest, the surety was not obligated to pay it. The argument that CPLR 5001 makes an award of prejudgment interest mandatory, regardless of the language of the surety bond, was rejected:

Here, the contract states that the surety will “pay for labor, materials, and equipment furnished for use in the performance of the [c]onstruction [c]ontract”; importantly to this case, there is no commitment to remit — or even mention of — prejudgment interest. “Surety bonds — like all contracts — are to be construed in accordance with their terms under established rules of contract construction. . . . [A] surety’s obligation upon its undertaking is defined solely by the language of the bond and cannot be extended by the court” … . In the matter before us, the damage claimed by plaintiff is the amount of prejudgment interest it did not receive in the judgment against the surety. However, under the clear and unambiguous terms of the payment bond, the surety had no obligation to remit same. Stone Cast, Inc. v Couch, Dale Marshall P.C., 2025 NY Slip Op 05860, Third Dept 10-23-25

Practice Point: CPLR 5001 does not make payment of prejudgment interest mandatory in breach of contract cases. The language of the surety bond, a contract, controls.​

 

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DEFENDANT TOOK A CELL PHONE PICTURE OF THE VICTIM IN THE SHOWER THROUGH A HIGH WINDOW; HE CLAIMED THE PHOTO WAS TAKEN ACCIDENTALLY WHEN HE WAS TRYING TO PHOTOGRAPH LIGHTNING; DEFENDANT, IN ANSWER TO A QUESTION BY THE POLICE ABOUT WHETHER THIS WAS A “PATTERN,” ADMITTED HE HAD SURREPTITIOUSLY TAKEN SIMILAR PHOTOS OF HIS WIFE; THE PREJUDICIAL EFFECT OF HIS APPARENT ADMISSION TO A “PATTERN” OF SIMILAR BEHAVIOR OUTWEIGHED ITS PROBATIVE EFFECT; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction and ordering a new trial, determined that prior bad act “Molineux” evidence should not have been admitted because its probative value was outweighed by its prejudicial effect. Defendant, using his cell phone, had taken a picture of the victim in the shower through a high window. In his interview with the police defendant admitted taking similar pictures of his wife: “When confronted with a conversation that law enforcement allegedly had with his wife and whether the subject conduct was in fact part of a ‘pattern,’ defendant … admitted that he had previously engaged in similar surreptitious photography of his wife.” Defendant claimed the picture of the victim was taken accidentally when he was trying to photograph lightning:

[From the police interview with defendant:] “Now what’s the deal with when I asked your wife if this has been an issue in the past, she says you’ve done it to her, the exact same thing in the shower, and you guys have had blowouts,” adding, “So this has been a pattern, you know, it’s not like it was an accidental lightning strike thing.” Defendant replied, “I understand that. Yes, it’s my wife. I’m madly in love with her. I think she’s absolutely beautiful. Yeah, I’ve done that to my wife.” * * *

A criminal purpose cannot be readily inferred from the generally equivocal act of taking a photograph, later deleted, in the location where defendant was standing. Thus, defendant’s admission to previously taking surreptitious photographs of another woman while she showered because of his sexual interest in her was directly relevant to that legitimate nonpropensity issue … . Further, by inserting an innocent explanation for the charged conduct into the case, defendant’s prior similar acts had obvious relevance as tending to refute the possibility of mistake or accident … . * * *

… [A]lthough the challenged prior bad act evidence was highly probative with respect to the foregoing legitimate purposes, there is no way around the fact that the gratuitous “pattern” allegation made by law enforcement while questioning defendant substantially tipped the scale. It was an abuse of discretion not to redact that portion of the interview, together with defendant’s ambiguous “I understand that” response, prior to admitting the recording into evidence — particularly in view of how excisable it was. People v Siciliano, 2025 NY Slip Op 05721, Third Dept 10-16-25

Practice Point: Consult this decision for an example of evidence which fits a Molineux category [here a seeming admission to a “pattern” of taking surreptitious photos of women in the shower to counter defendant’s claim the photo of the victim in the shower was taken accidentally], but is inadmissible because the evidence is more prejudicial than probative.

 

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EVIDENCE DEFENDANT’S AND THE CODEFENDANT’S ATTORNEYS SHARED THE SAME OFFICE AND WORKED CLOSELY TOGETHER REQUIRED A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION; DEFENDANT ARGUED HE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL BY A CONFLICT OF INTEREST (THIRD DEPT).

The Third Department, reversing County Court, determined a hearing was required on defendant’s motion to vacate his conviction on the ground that his attorney was ineffective because of a conflict of interest between his attorney and the codefendant’s attorney. The two attorneys (Reilly and Roberts) have the same address and there was evidence that they worked closely together, even if they were not members of the same firm:

… [W]hen “an ineffective assistance of counsel claim is premised upon a perceived conflict of interest, the law draws a distinction between actual and potential conflicts” … . First, “[a]n actual conflict exists if an attorney simultaneously represents clients whose interests are opposed and, in such situations, reversal is required if the defendant does not waive the actual conflict” … . The same is true for attorneys associated with the same firm simultaneously representing clients in a criminal matter … . Alternatively, where a potential conflict exists, reversal is only required where “a defendant shows that a potential conflict actually operated on the conduct of [the] defense” … . * * *

… County Court … recognized that it was undisputed that Reilly and Roberts maintained the same address for their law practice. Each of the affidavits in support further reflected that the attorneys gave the impression that they were associated in the same law firm or that they had worked closely with each other. Both defendant and the codefendant acknowledged that they were not advised of a potential conflict of interest, and our review of the record fails to reveal any consent or waiver by defendant for such alleged conflicts. While it is true that defendant failed to provide an affidavit from either attorney, or explain why he was unable to obtain same, this is not automatically fatal to his motion — particularly where many of the facts are corroborated in the record … . This is particularly true considering that the codefendant alleged his speedy trial challenge was waived by Roberts to allow defendant to accept a plea and be sentenced, demonstrating that Reilly and Roberts had been at least aware of each other’s strategy in resolving the charges against their respective client. Yet, there exists a stark contrast of the sentences between defendant, who received 12 years of incarceration with 5 years of postrelease supervision, and the codefendant, who allegedly received time served. These differences are not explained in the record before us, and give rise to questions of fact about whether the relationship between Reilly and Roberts may have operated on the defense by impairing the best strategy for defendant … . People v Rasul, 2025 NY Slip Op 05722, Third Dept 10-16-25

Practice Point: Defendant moved to vacate his conviction on the ground he was deprived effective assistance of counsel because of a conflict of interest. There was evidence his and the codefendant’s attorneys shared the same address and worked closely together. The nonrecord evidence of a potential conflict of interest required a hearing.

 

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