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Recent Court of Appeals Decisions
Last week, the Court of Appeals issued decisions on several areas of interest, including the termination of parental rights, bail decisions, discovery, and the Domestic Violence Survivors Justice Act (DVSJA). Below are brief summaries of some of the decisions. More information about these decisions will appear in future editions of News Picks and the Backup Center REPORT.
Matter of K.Y.Z., 2025 NY Slip Op 05781 (10/21/2025): The Court reversed a termination of parental rights where “[t]he record below demonstrates that the child services agency failed to present evidence of diligent efforts to help reunite father and his child before it petitioned to terminate father's parental rights.”
People ex rel Kon v Maginley-Liddie, 2025 NY Slip Op 05785 (10/21/2025): The Court reversed and remanded for issuance of a new securing order where the trial court “abused its discretion by failing to make an individualized flight risk determination and to explain both the basis for that determination and the choice of securing order, as required by [CPL 510.10].”
People v Fuentes, 2025 NY Slip Op 05872 (10/23/2025): “This appeal asks us to determine whether the People provided the discovery required by CPL 245.20 (1) before filing a certificate of compliance (COC) and declaring their readiness for trial within the applicable speedy trial period. Specifically, we must decide whether the People's COCs were invalid because they failed to first disclose a police Internal Affairs Bureau (IAB) report concerning misconduct allegations against the arresting officer arising from an unrelated incident. We conclude that, even assuming CPL 245.20 (1) (k) (iv) requires the People to disclose such misconduct allegations, the People did so here, filed a valid COC, and timely declared their readiness for trial.”
The majority held that it would reach the same decision whether it applied the language in the version of CPL article 245 that took effect on August 7, 2025, or the version in effect before that date. The dissent would have applied the pre-2025 amendments and reversed.
People v Hernandez, 2025 NY Slip Op 05874 (10/23/2025): The Court held that the sentencing judge correctly imposed a five-year term of post-release supervision under Penal Law 70.45 when it sentenced the defendant to a determinate sentence under the DVSJA (Penal Law 60.12).
People v Robinson, 2025 NY Slip Op 05871 (10/23/2025): The Court held that the “defendant was improperly subjected to custodial interrogation and … his statement should have been suppressed” where the record did not support the trial court’s conclusions that the defendant was not in custody and that he was not subject to interrogation in the immediate aftermath of an altercation. The defendant “was handcuffed, surrounded by numerous officers, and questioned about the altercation [and he] remained restrained as he was searched, questioned, and repeatedly accused of theft and assault by the victim over an approximately eight-minute period.” However, the error was harmless.
CAL Court of Appeals September Update Available
The Center for Appellate Litigation (CAL) has made the September edition of its Court of Appeals newsletter available to the public defense community. It notes significant cases awaiting decision, scheduled for argument, and waiting to be scheduled. Also noted are a series of Sex Offender Registration Act (SORA) leave grants and new leave grants. NYSDA thanks CAL for making this and other resources available to the public defense community!
Verbal Abuse by One Parent Against the Other is a Factor in Family Court Custody Cases
Pursuant to Domestic Relations Law 240, domestic violence is one of the few things that courts are statutorily mandated to consider in a family court custody case. The Kings County Family Court reminds us that in a custody case, allegations of verbal and emotional domestic violence can be just as consequential as allegations of physical violence. In Matter of K.E. v A.E. (2025 NY Slip Op 51557), the mother was awarded sole custody of the subject child based on the court’s determination that the father engaged in a pattern of domestic violence against her. The court was especially disturbed by the father’s demeanor during his testimony, characterizing it as “open contempt” for the mother. The court continued, “[t]he evidence and testimony demonstrated that any attempt to discuss the substance of an educational or medical decision with Mr. E. would devolve from a discussion of the issue at hand into a diatribe by Mr. E. about how horrible of a person and mother Ms. E. is.” The father’s petition for joint custody was denied with the court noting that, “[e]ntrusting the custody of young children to their parents jointly, especially where the shared responsibility and control includes alternating physical custody, is insupportable when parents are severely antagonistic and embattled." The court did award the father parenting time.
Don’t Confuse the “Standing” Requirements of Grandparent Visitation and Custody
In Matter of Bell v Bell (2025 NY Slip Op 05078), the Second Department reversed and remitted the matter to the family court, which had erroneously dismissed a grandparent visitation case based on failure to prove extraordinary circumstances (the standard for grandparent custody cases). The appellate court conducted its own analysis of the facts in determining that the grandmother had met the standing requirement of “equitable circumstances.” The decision states that, "[w]hen grandparents seek visitation under [Domestic Relations Law] section 72(1), the court must undertake a two-part inquiry. First, the court must find standing based on death or equitable circumstances; and if the court concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild.” (Citations and internal quotation marks omitted.)
Confusion about the standing requirements for grandparent visitation and grandparent custody is common. The seminal Court of Appeals case for grandparent versus parent custody cases is Bennett v Jeffreys (1976). Defenders working on either type of case can refer to sample motions to dismiss custody and visitation cases on NYSDA’s motion practice page.
October Issue of WNY RIAC Newsletter: Sex Offenses and Removal, CIS Powers and Policies, and More
The Western New York Regional Immigration Assistance Center (WNY RIAC) has issued its October newsletter. An update on grounds for removal that may be triggered by sex offense convictions points out that there are considerations that defenders need to be aware of. While it is hard to find “alternative pleas that are ‘safe’ from removal” in these cases, “pleas with less severe immigration implications might be crafted” in some instances. The lengthy article, which addresses many different sex offenses, concludes with the reminder that “[i]t is always important to consult the RIAC when your noncitizen client faces criminal charges to ascertain the specific immigration implications of a plea and to, hopefully, reduce the impact on the client’s status.”
For lawyers with clients in federal detention facilities, the newsletter includes a link to the U.S. Citizenship and Immigration Services (USCIS) guide to the Detention Facility Appointment Scheduler. On other USCIS fronts, the newsletter reports that the agency 1) “will begin neighborhood investigations of individuals applying for naturalization" [in accordance with section 335(a) of the Immigration and Nationality Act] and 2) “will expand its law enforcement authorities and newly-minted classified officers (commonly known as special agents) will be empowered to investigate, arrest, and present for prosecution those who violate immigration laws.”
As always, NYSDA thanks the WNY RIAC for sharing information with defenders and thanks all the RIACs around the state that assist defenders in securing the best possible outcome for clients who are citizens of other countries.
Some Held in Jails Under ICE Detainers Can’t Communicate with Lawyers
An October 6th article from NYSFocus.com describes the difficulties that many people have in communicating with immigration attorneys when detained by Immigration and Customs Enforcement (ICE) in county jails. This article follows one on September 16th about the increase in the number of people held in jails as ICE detainees. See the September 30th edition of News Picks. The latest article says that while ICE detention standards require access to communication with lawyers, some jails are not listed in ICE’s online detainee locator database, and contact is hampered by the “idiosyncratic rules around communication and visitation” that must be navigated.
Technology issues can also hamper legal communication, the article adds. No mention is made of confidentiality problems, but such issues may arise. The April 9, 2021, edition of News Picks highlighted concerns about illegal recording of legal conversations between lawyers and clients in jail. And the confidentiality of client information cannot be taken for granted, in or out of jail. A Massachusetts immigration lawyer has just sued for immediate return of a cell phone seized by federal agents in an airport “border search” and for steps to be taken to prevent government access to and retention of client information stored on it, according to a Yahoo.com post on October 3rd.
DOCCS is Sued in Federal Court Over Marcy Conditions; UN is Asked to Investigate DOCCS and Local Facilities
Prisoners’ Legal Services of New York (PLS) and Disability Rights New York (DRNY) filed a federal complaint on September 9th against New York State’s Department of Corrections and Community Supervision (DOCCS) and Office of Mental Health (OMH). As noted on the PLS website, PLS and DRNY “found that the Marcy Correctional Facility’s Residential Mental Health Unit (RMHU) functions similarly to the segregated housing units it was meant to improve” in the wake of an earlier lawsuit. Incarcerated individuals with serious mental illnesses are isolated in segregated units in abysmal conditions, the plaintiffs allege. The complaint and other documents are posted.
The HALT Solitary Campaign has filed a complaint with the United Nations alleging violations of human rights in both DOCCS and local jails. As noted on CityAndStateNY.com, the complaint was filed with 1) the special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, and 2) with the special rapporteur on extrajudicial, summary or arbitrary executions. “The complaint specifically cites prison and jail use of solitary confinement, staff abuse, long sentences and deaths while incarcerated,” according to the article, and references the beating deaths of Robert Brooks and Messiah Nantwi at the hands of DOCCS guards.
Campaign to End Prison Violence Launched
End Prison Violence (EPV), formed after Robert Brooks was murdered by DOCCS employees, has launched, in partnership with a growing coalition, a statewide campaign to “transform prison culture” in New York. The goal: “to end violence in prisons and create a system rooted in dignity, oversight, healing, and shared humanity.”
EPV supports the Omnibus Prison Reform bill passed in June, a legislative response to the in-custody death of Robert Brooks and, just months later, Messiah Nantwi. The bills that make up the package are described on the EPV website, which also notes the failure to pass other sentencing and parole reforms needed to address New York’s prison crisis. Media coverage of EPV’s campaign includes a September 18th article on AmsterdamNews.com.
Special Prosecutor in Robert Brooks Murder Case Calls Corrections Officers “A Gang”; but Two of Three Defendants Are Acquitted
At the trial of three former corrections officers charged with the murder and manslaughter of Robert Brooks inside Marcy Correctional Facility, Special Prosecutor William J. Fitzpatrick specifically called the defendants members of “a gang.” That designation is necessary for the felony gang assault charges the defendants were facing, especially for those defendants who are only seen in the background of the assault footage.
For one of those defendants, Fitzpatrick specifically employed prosecutorial rhetoric most often used in organized crime cases: “You’ll see him walking around, looking at, participating, chuckling, hanging with his fellow gang members, while this poor 43-year-old, 148-pound guy, is being pummeled like a rag doll a few feet away,” Fitzpatrick later said, “Remember, they killed him, that gang.”
Only one defendant, David J. Kingsley, II, was found guilty of second-degree murder. The two other officers Fitzpatrick argued were guilty as part of the alleged gang assault were acquitted. Other corrections officers have pleaded guilty to crimes connected with Mr. Brooks’ murder, and one officer facing second-degree manslaughter charges is scheduled to go to trial in January. Kinglsey will be sentenced in December.
Judge Zayas Announces Artificial Intelligence Policy Across New York Courts
In early October, Chief Administrative Judge Joseph Zayas released an “Interim Policy on the Use of Artificial Intelligence” for the New York Unified Court System. The five-page document includes a brief explanation of how generative AI works, as well as the problems associated with the technology - including “inaccurate, wholly fabricated, or biased outputs.” The document also includes an appendix outlining approved AI tools “procured and managed” by OCA, as well as a single approved public tool (OpenAI’s free version of ChatGPT).
In an accompanying press release, Zayas is quoted as saying, “While AI can enhance productivity, it must be utilized with great care. It is not designed to replace human judgment, discretion, or decision-making.” The policy applies to “to all UCS judges, justices, and nonjudicial employees, and operates essentially everywhere a UCS-owned device is being used or UCS-related work is being performed on any device.”
Defense attorneys and defense team members exploring the use of AI should review the “Artificial Intelligence Starter Guide” from NYSDA’s Discovery and Forensic Support Unit. The guide provides information about AI tools, some general benefits and risks of these tools, and considerations regarding the use of AI tools in your practice.
New York to Use Term “Person Experiencing an Emotional Crisis”
Governor Hochul has signed legislation requiring state agencies, public authorities, and municipalities to use the term “person experiencing an emotional crisis” rather than “emotionally disturbed person” in documents, training material, agency guidance, and similar materials. L 2025, ch 414. The law becomes effective on Sept. 26, 2026. The Alliance for Rights and Recovery announced the signing, calling it an “important step toward building a more person-centered system of support.” Shifting the words used “in everyday crisis response, training, and regulations” moves New York “closer to services that affirm dignity, compassion, and recovery,” the Alliance stated.
Whether this law will change how the media talks about this topic remains to be seen; the now-replaced phrase appears frequently in stories about law enforcement being summoned to a scene.
ILS Publishes Defense Investigation Standards
The NYS Indigent Legal Services Office (ILS) has issued The Standards for the Investigation Function of Interdisciplinary Defense Teams. Approved by the Indigent Legal Services Board on September 19th, these standards are intended to “provide a uniform framework for developing, implementing, and evaluating effective investigation and defense team collaboration while recognizing that individual public defense provider offices have localized needs.”
The standards are set out in segments. The initial segment addresses Design and Duties of Defense Investigation Teams. It “defines how to build, organize, and operate a collaborative investigative function on an interdisciplinary defense team that works in sync with defense strategies and centers the client.” The segment on Special Ethical Considerations covers principles like confidentiality, mandated reporting, and giving legal advice and practices like identifying oneself as a defense team member, not misrepresenting facts, conducting witness interviews, and more in the investigation context. A full segment is devoted to Training, covering many different types important for investigators and the teams they work with. The final segment sets out Investigator Responsibilities from Planning and Preparing (including Safety Planning and Preparing for Field Investigations) through Evidence, Databases and other technology, Record Collection, Working with Experts, and Testifying.
Links to many different public defense standards can be found on NYSDA’s Public Defense Standards webpage. NYSDA encourages defenders to use public defense standards, including this newest set from ILS, to improve the quality of representation clients receive. How? Include standards in a motion to educate judges about the propriety of a particular defense action. Include standards in budget requests to inform county funders that ILS has said particular actions and use of resources are warranted. Point clients or family members to standards to help them understand why certain actions are advisable or, in some instances, not advisable or possible. And review standards when in doubt about the need for a possible action or just as a refresher about the many aspects of a defender’s role.
Movement Lawyering is the Vehicle for Keeping Families Together, Says Advocate
April Lee from the newly founded Philadelphia non-profit organization, Philly Voice for Change, recently wrote a blog post entitled, Removing the Adversarial Position of Family. Lee reflects on the role of movement lawyering in the pursuit of systemic change in the child welfare (family policing) system. She argues that “[b]y embracing movement lawyering and building genuine relationships within the community, we can shift the focus from punitive responses to proactive support. When we support families as a whole, we create the stable, nurturing environments children need to truly thrive.” Philly Voice for Change is a partner of the New York organization JMAC For Families, which has been instrumental in lobbying for systemic change in the way the NY “child welfare” system operates.
Association News
Shelbey Smith Joined NYSDA’s Public Defense Case Management System
Shelbey joined NYSDA in October as an Information Systems Specialist for PDCMS. She graduated with a B.S. in Computer Science from SUNY New Paltz, where she also worked in the campus IT Department to provide hardware and software support to faculty, staff, and students. As a life-long resident of New York, she is committed to assisting her community through technical education and advancements.
NYSDA’s Veterans Defense Program Welcomes Sarah Lee
Sarah Lee joins NYSDA’s VDP team with criminal public defense experience in New York and Arizona, and most recently, she was a project manager and policy analyst at the Council of State Governments Justice Center. Her work at the Council focused on criminal legal system data and transparency.
Web Training
November 6, 2025, 1;00 – 2:30 pm: Future Reasonable Efforts in Permanency Hearings: Advocating for Orders with Impact
This free webinar will be presented by Keith Baumann, Director of Holistic Defense and Training, and Leila Tabbaa, Co-Director of Training & Supervising Attorney, Family Defense Practice, both from the Bronx Defenders. For more information and to register, click here.
November 21, 2025, 1:00 – 2:15 pm: Representing Adolescents: A Defense Attorney's Guide
This free webinar will be presented by Alan Rosenthal, Attorney at Law, and Author, A Defense Attorney's Guide to Representing Adolescents. For more information and to register, click here.
November 25, 2025, 1:30 – 2:45 pm: Working with the New Vehicle & Traffic Regulations
This free webinar will be presented by Joseph Gerstenzang, Partner, Gerstenzang, Sills, Cohn & Gerstenzang. It will cover what defense attorneys need to know about the November 2024 amendments to the DMV regulations regarding the assessment of points, license suspensions and revocation, and the assessment of safety factor negative units. For more information and to register, click here.
December 10, 2025, 1:00 – 2:30 pm: Creative Defenses to Allegations of Drug Use in Article 10 Cases
This free webinar will be presented by Carmen Tellez, Senior Attorney, Family Defense Practice, Brooklyn Defenders, and other panel members TBA. For more information and to register, click here.
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