The Right Thing

Code of Conduct

1st Quarter 2026 Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

1st Dept

People did not fail to comply with discovery obligation in effect at the time

• People v Espinoza, 2026 NY Slip Op 01740 (1st Dept 3/24/26) – People not required, during pendency of 2023-24 prosecution, to disclose a form prepared in connection with a codefendant’s plea agreement, which stated that the codefendant intended to invoke his Fifth Amendment privilege if called to testify at trial. The form did not “relate to the subject matter of the case” under the statute then in effect (former CPL 245.20[1], repealed by L 2025 NY, ch 56, § 2, part LL, eff August 7, 2025).

2d Dept

Article 245 compliance

• People v. Ryan, 2026 NY Slip Op 01384 (2d Dept 3/11/26) – People’s initial failure to disclose certain police internal affairs reports and civil litigation paperwork pertaining to police witnesses “was inadvertent and without bad faith or a lack of due diligence as evidenced by the fact that the People promptly disclosed those materials once they obtained them.” People also promptly turned over updated CVs and proficiencies for two witnesses and property withdrawal receipts generated while preparing for trial.
• People v Alexander, 2026 NY Slip Op 01207 (2d Dept 3/4/26) – Trial court properly determined that IAB files with exonerated or unfounded allegations were not subject to automatic disclosure under CPL 245.20 (1) (k) (iv).
• People v Hespinobarros, 2026 NY Slip Op 00260 (2d Dept. 1/21/26) – Due diligence shown, although GJ testimony and underlying disciplinary records of police witnesses provided after COC/SOR. GJ transcripts given to the defense on the same day they became available. People provided the defense with “Law Enforcement Officer as Witness” reports for police officers they intended to call at trial, which summarized their disciplinary history.

3d Dept

No basis for Brady claim

• People v Clay, 2026 NY Slip Op 00038 (3d Dept 1/8/26) – While defendant alleged the People wrongfully withheld a photograph of the victim in defendant’s home on the day of the incident, there was no basis for such a claim, and the People confirmed they were no in possession of the photograph. Additionally, based on defendant’s own description, the photograph would be inculpatory in nature, and thus would not fall within the Brady rule.

Motion to reopen Huntley hearing based on inconsistent recordings

• People v Bjork, 2026 NY Slip Op 00037 (3d Dept 1/8/26) – Court properly denied defendant’s CPL 710.40 (4) motion to reopen the Huntley hearing on the basis that the recording offered by the People was different than the one received by defendant in discovery, which depicted defendant requesting an attorney prior to Miranda. Suppression court stated it did not consider the disc in rendering its decision, and defendant possessed the contrary recording prior to the hearing, whereupon he could have used it to impeach the police officer.

Adding witnesses before trial

• People v James, 2026 NY Slip Op 00406 (3d Dept 1/29/26) – Updates to People’s witness list to include individuals who had been either previously disclosed in the discovery materials, or where the individual’s name was disclosed expeditiously after learning their identity as a potential witness, was indicative of the People’s due diligence. COC found to be valid.

No discovery sanctions warranted

• People v Harris, 2026 NY Slip Op 01095 (3d Dept 2/26/26) – Court upholds validity of COC, and find no sanctions warranted based on belated disclosure of medical records and video calls. People disclosed additional items shortly after receipt, in accordance with their continuing duty to disclose, and “and defendant was not prejudiced as he had plenty of time to incorporate the information into his defense and use the information at trial.”

Mid-trial discovery disclosure requires due diligence analysis

• People v Stanley, 2026 NY Slip Op 00941 (3d Dept 2/19/26) – Existence of BWC discovered during cross-examination, after People were mistakenly advised none existed. When defense challenged the initial COC and moved for a mistrial, Supreme Court denied the motion and instead offered remedial relief under 245.80, including recalling the officer, playing the BWC for the jury, or a missing evidence instruction. Third Department held the trial court was required to consider and make express findings on the validity of the COC, such as the People’s due diligence and compliance with CPL 245.20. Case remitted for trial court’s ruling.

4th Dept

Alleged lapses in ongoing discovery may trigger sanctions but do not invalidate original COC

• People v Oliver, 2026 NY Slip Op 01642 (4th Dept 3/20/26) – Records in question either did not exist at the time the COC was filed or were not “related to the prosecution of a charge”,and were not part of the “discovery required” to be automatically disclosed by the People prior to the filing of a proper COC. “[T]he People’s failure to provide the records at the time they served and filed their original . . . [COC did] not render [the COC] improper”. People established that they had ” ‘exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery’ ” at that time.

Preclusion for discovery delay of impeachment material on witness properly denied

• People v Khauka, 2026 NY Slip Op 00728 (4th Dept 2/11/26) – County Court did not abuse its discretion in denying his motion to preclude the testimony of his accomplice due to the People’s belated disclosure of the accomplice’s criminal history. Defendant failed to allege/demonstrate prejudice and no sanction was required, especially where counsel was offered additional time to review the material.

245/30.30 motion – burden not met in moving papers

• People v Felix, 2026 NY Slip Op 00660 (4th Dept 2/11/26) – Although defendant alleged in that the People’s failure to disclose certain material discoverable under CPL 245.20 rendered their certificate of compliance illusory and, thus, the People should be deemed not ready for trial, defendant failed to allege “the commencement date of the criminal action, that the statutorily prescribed time period was six months, or that an unexcused delay of more than six months had elapsed since the commencement of the action “and thus ” ‘failed to satisfy his initial burden under CPL 30.30.

245/30.30 claim waived by plea and inapplicable to homicide charges

• People v Ellison, 2026 NY Slip Op 00696 (4th Dept 2/11/26) – Court adjourned the trial and imposed other sanctions on the People pursuant to CPL 245.80 for their belated disclosure of certain evidence. Defendant’s contention that dismissal of the indictment was the only appropriate sanction is forfeited by his plea. In any event, contention lacks merit because the speedy trial requirements of CPL 30.30 do not apply to homicide charges.

Private Surveillance Video Not in People’s Possession Was Not Required Disclosure Prior to SOR

• People v Dibble, 2026 NY Slip Op 01695 (4th Dept 3/20/26) – People promptly disclosed surveillance camera footage from four cameras at the private property scene, which depicted defendant and his theft. Although there was an excessive delay in disclosing that there were six other cameras at the scene that may have contained footage from the day of the incident, that footage was not in the possession, custody, or control of the police or the People and therfefore not subject to automatic discovery under CPL 245.20. before the People filed COC.

Court Properly Denied Access to Scene as a Part of Discovery

• People v Heffernan, 2026 NY Slip Op 01904 (4th Dept 3/27/26) – County Court properly denied CPL 245.30 (2) motion seeking defense access to the premises to inspect and photograph the stairs. The “court may deny access to the premises when the probative value of access to such location has been or will be preserved by specified alternative means.” Here, the condition of the stairs was sufficiently preserved by alternative means, including crime scene photographs and body camera footage recorded by officers when they arrived at the crime scene.

Brady Violation Failed Materiality Test

• People v Dennis, 2026 NY Slip Op 01876 (4th Dept 3/27/26) – Information regarding a witness’s arrests and his personal relationship with an officer on the case constituted Brady material. However, even assuming the information was available to the People, under the circumstances of this case, defendant failed to establish materiality under Brady inasmuch as there is neither a reasonable probability nor a reasonable possibility that, had the information been disclosed to the defense, it would have changed the result of the trial as the verdict did not turn solely on the witness’s testimony.

Court Properly Denied Defendant’s Demand For Homicide Victim’s Criminal History

• People v Washington, 2026 NY Slip Op 01899 (4th Dept 3/27/26) -County Court did not err in denying defendant’s pretrial request for a copy of the victim’s entire criminal record to use in support of a justification defense. Defendant did not establish that the acts were “reasonably related, in time and quality,” to the homicide charge or that he was aware at the time of the homicide of any other prior violent acts reasonably related to that crime.

Grand Jury

2d Dept

No merit to claim alleged GJ impropriety should result in dismissal

• People v Garcia, 2026 NY Slip Op 00386 (2d Dept 1/28/26) – “Exceptional” remedy of dismissing an indictment “is warranted only where prosecutorial misconduct, fraudulent conduct, or errors created a possibility of prejudice.” Given the independent and properly admissible proof that supported the indictment, the Second Department held that the complained-of testimony “did not impair the integrity of the grand jury proceeding to the extent that dismissal of the indictment was required.”

3d Dept

Shackling defendant during grand jury testimony

• People v Cavanagh, 2026 NY Slip Op 00287 (3d Dept 1/22/26) – Keeping defendant in shackles during his testimony impaired the integrity of the grand jury proceedings, where the prosecutor failed to articulate a reasonable basis for the restraints on the record at the commencement of proceedings, outside the presence of the grand jurors, and failed to deliver any curative instruction to mitigate prejudice to defendant. However, indictment not dismissed due to overwhelming evidence.

4th Dept

Claims of Alleged GJ Defects Did Not Survive Guilty Plea

• People v Vandoren,, 2026 NY Slip Op 01650 (4th Dept 3/20/26) – By pleading guilty, defendant forfeited appellate consideration of his multiple challenges to the grand jury presentment.

Grand Jury Evidence Insufficient

• People v Martin, 2026 NY Slip Op 01632 (4th Dept 3/20/26) – Police officer testified at GJ that a certain vehicle was at the scene and it was his “take” that certain video evidence showed “consistencies with something sticking out of the passenger side of that vehicle at that time” (emphasis added). He did not testify that this “something” was a person, gun, or anything else, let alone that this “something” was defendant. People failed to present legally sufficient evidence that defendant shared the perpetrator’s intent to kill the victim. “[P]resence at the scene of the crime, alone, is insufficient for a finding of criminal liability”.

Voir Dire & Juror Issues

3d Dept

For-cause challenge denied

• People v Moore, 2026 NY Slip Op 01246 (3d Dept 3/5/26) – For-cause challenge in robbery trial properly denied where the prospective juror’s father was a victim of a robbery 32 years prior, where the juror unequivocally assured the court he could be fair and impartial.

Batson challenge; prima facie showing

• People v James, 2026 NY Slip Op 00406 (3d Dept 1/29/26) – Batson challenge properly denied where People used a peremptory challenge on a prospective juror who stated she is “critical of the police and their dealings with the black community.” Defendant failed to satisfy step 1 and make a prima facie showing that the juror was challenged on the basis of race, where he claimed only that the juror had been rehabilitated, but did not articulate how the alleged rehabilitation would suggest the People’s challenge was racially motivated.

4th Dept

Defense failed to establish prima facie Batson claim

• People v Brown (Anttwan), 2026 NY Slip Op 01629 (4th Dept 3/20/26) – Defense claimed that there was a pattern of “removing minority jurors,” and the prospective juror in question had “told everyone he could follow the [c]ourt’s instructions.” Defense counsel’s vague and conclusory statements were insufficient to establish a prima facie case of discrimination. Additional claim that the statements made by one of the codefendants’ counsel – that another prospective juror of color was also removed and “they both gave similar answers,” – was insufficient to establish an inference of discrimination.

Opening

Nothing of significance reported

Direct

Court of Appeals

Improper Molineux results in reversal

• People v Henderson, 2026 NY Slip Op 01627 (3/19/26) – People should not have been permitted to put in evidence of defendant’s 2017 possession of cocaine in his car at 2021 trial where the People were required to establish defendant’s knowing or constructive possession of contraband found in apartment he shared with his father. “[T]he two incidents involved different locations, different circumstances, different theories of possession, and took place around two years apart.” The cocaine was also packaged differently. “The only significant commonality between the 2017 and 2019 incidents is defendant’s being accused of possessing cocaine in both instances, which is exactly the type of propensity evidence that Molineux forbids.”

1st Dept

Non-eyewitness identification properly part of People’s case

• People v Herring, 2026 NY Slip Op 01288 (1st Dept 3/5/26) – Parole officer, who sat next to defendant on a 10-hour bus ride, “satisfied the requirements for a lay identification witness set forth in People v Mosley (41 NY3d 640 [2024]).”

Improper Molineux evidence – new trial ordered

• People v Nieves, 2026 NY Slip Op 00979 (1st Dept 2/19/26) – At trial of child sex offenses, People should not have been permitted to elicit testimony from victim as to uncharged incident of oral sex. “Even if the People established some non-propensity basis for introducing this evidence, the prejudicial nature of that evidence far outweighed any probative value,” and 1st Dept refused to find that curative instruction “cured the prejudice of admitting testimony about a past sex crime with little or no legitimate relevance to a non-propensity purpose.”

Body cam footage of hearsay statements properly admitted

• People v Darbasie, 2026 NY Slip Op 00856 (1st Dept 2/17/26) – “The statements were made less than half an hour after one of the codefendants smashed the witness’s car window with a blackjack then ran into a nearby school; the responding officers immediately noted her agitation; and she appeared visibly distressed on the videos while speaking to the officers…. The admission of these non-testimonial statements did not violate defendant’s confrontation rights, as they were made to an officer whose primary purpose was to determine what had happened and to ensure the safety of the general public….”

Also, evidence of the vandalism and harassment committed by Darbasie’s codefendants against 2 witnesses was “clearly relevant, in context, to defendant’s guilt … and the significant probative value of that evidence was not outweighed by any undue prejudice” to the defendant.

2d Dept

Mulit-facted challenge to ME’s testimony

• People v Pope, 2026 NY Slip Op 01804 (2d Dept 3/25/26) – ME’s opinion, based upon her review of autopsy photographs, that the cause of death was primarily due to a bullet wound to the brain, was properly admitted. Although other parts of the medical examiner’s testimony, and the receipt of the autopsy report, violated the Confrontation Clause, those errors were harmless beyond a reasonable doubt. “The autopsy report and the medical examiner’s testimony had little to no bearing on the defendant’s defense, which was predicated on mistaken identity.”

Prior Uncharged Acts of Sex Abuse Admitted Properly:

• People v Ble, 2026 NY Slip Op 01375 (2d Dept 3/11/26) – The trial court properly admitted testimony about the defendant’s uncharged acts of sexual abuse against the victim after she turned 11 years old. The testimony completed the narrative of events charged in the indictment, provided relevant background information to explain to the jury the nature of the relationship between the defendant and the complainant, and placed the charged conduct in context. Also, the probative value of the evidence outweighed its potential for undue prejudice to the defendant, and the Court gave a proper limiting instruction.

Body-worn cameara footage and another video should not have been part of the People’s case

• People v Jones, 2026 NY Slip Op 00262 (2d Dept 1/21/26) – Enhanced compilation video should not been received into evidence since the probative value of the enhanced compilation video was substantially outweighed by the potential for prejudice. The video included a photograph of a knife while highlighting an object in the defendant’s hand; it also depicted a photograph of the victim’s fatal wound while highlighting what appeared to be blood on the victim’s shirt. Similary, the trial court should have exlcuded the posce BWC that depicted the victim as he lay dying in the street, while a woman pleaded with him to open his eyes and a police officer attempted CPR. But errors deemd harmless in lgiht of overwhelmiong evidence of the defendant’s guilt.

3d Dept

Admissibility of photographs of hospitalized victim

• People v Cox, 2026 NY Slip Op 01096 (3d Dept 2/26/26) – Photograph of intubated victim in hospital bed was not purely inflammatory, as it was relevant to illustrate and corroborate testimony concerning the extensive medical treatment he received, underscoring the seriousness of the internal injuries that led to his death. Photo therefore properly admitted with cautionary instruction. However, other prejudicial photos of injuries to victim’s arm, an injury not shown to be connected to the charged crimes, were not relevant, and it was error to admit them.

Molineux evidence of prior drug possession

• People v Daniels, 2026 NY Slip Op 01248 (3d Dept 3/5/26) – In 2023 trial for criminal possession of a controlled substance in the 3rd and 4th degrees, Court permissibly allowed evidence of defendant’s 2003 and 2019 possession convictions for purposes of showing intent and motive under Molineux. Although the 2003 conviction was “temporally attenuated,” the probative value of the evidence outweighed its prejudicial effect, and the court gave appropriate limiting instructions.

4th Dept

Molineux Evidence Properly Allowed

• People v Provost, 2026 NY Slip Op 01643 (4th Dept 3/20/26) -Court properly concluded that the evidence of uncharged acts of sexual abuse against one of the victims, physical abuse of two victims, and threats of harm against those same victims if they disclosed the ongoing sexual abuse was relevant “to complete the narrative and provide proper context for the offenses charged in the indictment and . . . to establish the victim[s’] state of mind, the relationship between defendant and the victim[s], [and] the delay in reporting”.

Court Erred In Disallowing Exculpatory Prior Testimony of a Witness Under Hearsay Exception.

• People v Williams, 2026 NY Slip Op 01881 (4th Dept 3/27/26) – Reversed. The court abused its discretion in refusing to admit a witness’s prior CPL article 440 testimony as a statement against penal interest in light of the exculpatory nature of the excluded testimony, wherein he claimed responsibility for the shooting, and the circumstantial nature of the prosecution’s case.

Cross-examination

Nothing of significance reported.

Re-Direct/Rebuttal

3d Dept

Rebuttal evidence challenged as collateral issue

• People v Bjork, 2026 NY Slip Op 00037 (3d Dept 1/8/26) – People permitted to elicit testimony on cross-examination regarding details of third party’s purported admissions. Such testimony was not impeachment on a collateral issue, but relevant to disprove an affirmative fact offered by defendant in reply to the People’s case-in-chief: that the third party was to blame for victim’s death.

Summation

Nothing of significance reported.

Conflict of Interest/Appearance of Impropriety

Nothing of significance reported.

Miscellaneous

Court of Appeals

14-month pre-indictment delay should not have resulted in dismissal

• People v Tyson, 2026 NY Slip Op 01446 (3/17/26) – Upon weighing the five factors enunciated by People v Taranovich, 37 NY2d 442 (1975) factors, the Court condluded that the defendant — charged with assaulting a corrections officer while incarcerated for a different crime — was not deprived of his constitutional rights. Two factors were deemend to be in the People’s favor:

1. There is “a large body of precedent denying speedy trial claims based on similar periods of pre-indictment delay”;
2. The delay did not prejudice the defendant’s ability to mount a defense on the ssault charge.

These outweighed the remaining factors that either didn’t favor either side or weighed only slightly in the defendant’s favor.

1st Dept

Theory of prosecution did not impermissibly vary from the indictment

• People v Qatabi, 2026 NY Slip Op 00987 (1st Dept 1/19/26) – Defendant not deprived of fair notice. “The People’s theory in the grand jury and at trial was that defendant trespassed by entering the victim’s apartment, not by entering the apartment building, and the defense proceeded under the same theory.”

ADA’s “troubling” representations to defendant did not render his post-arrest statements involuntary

• People v Matias, 2026 NY Slip Op 00328 (1st Dept 1/27/26) – In her interview of the Mirandized defendant, ADA told him, “I’m not going to tell anybody about you giving up somebody’s name,” and repeatedly offered further assurances along this line. 1st Dept held that suppression of defendant’s statements not required because the prosecutor’s representations “while troubling, were not ‘so fundamentally unfair as to deny due process’…” In reaching this conclusion, 1st Dept pointed to, e.g., defendant’s lengthy criminal history and extensive experience with “the criminal process.”

2d Dept

27-year delay in prosecution did not require dismissal

• People v Grant, 2026 NY Slip Op 00910 (2d Dept. 2/18/26) – On People’s appeal, the Second Department reinstated the murder indictment dismissed by the trial court pursuant to (People v Taranovich, 37 NY2d 442 (1975). Apart from the “presumptive prejudice” of the long delay in prosecution, the defendant failed to establish special prejudice. The Singer hearing on the motion showed that, by the mid-1990s, the police had determined in good faith all leads were exhausted. A case against the defendant would have been largely circumstantial, and the People thus had a good faith basis to wait until they uncovered additional evidence that more decisively implicated him.

4th Department

Waiver of appeal condition was proper condition of plea

• People v Wright, 2026 NY Slip Op 00669 (4th Dept 2/11 2026) – Waiver of the right to appeal is not unconscionable per se. Not improper for the People to demand a waiver of the right to appeal as a condition of a plea bargain, and an appeal waiver is not rendered unenforceable due to circumstances inherent to the plea bargaining process in general.

Cyber Security

Nothing of significance reported.

AI Use

New York

NY Courts AI Use Administrative Order

• AO75/26 – adopted 3/25/26, effective 6/1/26
  • Courts may implement AI policies that should essential say that Attorneys are responsible for their work and bound by the Rules of Professional Conduct.

Monetary sanction for fake citations

• Deutsche Bank Natl. Trust Co. LeTennier, 2026 NY Slip Op 00040 (3d Dept 1/8/26) Imposes monetary sanctions of $7,500 on defense counsel Joshua Douglass for submitting at least fabricated legal authorities, violating rule 3.3. Court made it clear that attorneys are not prohibited from using AI to assist with the preparation of court submissions but like work from a paralegal, intern or another attorney, lawyers have an obligation to fact check and cite check every document filed with a court.

• Cassata v Michael Macrina Architect, P.C., 2026 NY Slip Op 26014 (Sup Ct, Suffolk Co. Kevins, J. 1/27/26) – Court imposed sanction, but declined to file grievance. “We all need to learn this technology. It is not a train that is coming, it is here and speeding fast and we are on it whether we like it or not.”

Disciplinary action for fake citations

• Matter of Zareh 2026 NY Slip Op 00619 (1st Dept 2/10/26) – Public censure (reciprocal discipline) for submitting an AI-generated brief with false citations and misrepresented case law in violation of:
  • Rule 3.1 – unreviewed AI-drafted materials that misrepresented case law
  • Rule 5.1 – Failing to supervise

Additional NY Cases where courts confronted non-existent citations

• Wurtenberg v. City of NY, 2026 WL 144456 [only citation available] (Sup Ct, NY Co. Auguste, JSC 1/12/26) – Court reminds plaintiff’s counsel that he has a professional and ethical obligation to verify all AI-generated data before this material can be used in a court submission and cautions him that a future failure to abide by this obligation will result in sanctions being imposed.
• Corst v Mushailov, 2026 NY Slip Op 50071(U) (Civil Ct. Kings Co., Malik, J. 1/15/26)

Other Jursidictions

Kenosha, Wisconsin DA Sanctioned

• Judge sanctions Kenosha County DA for AI use in court
  • Court sanctions DA Solis by striking the State’s Response for failure to disclose AI, using hallucinated and false citations and for admitting failure to disclose AI.

Public reprimand

• McCarthy v DEA (3d Cir 3/27/26) – Excellent discussion of ethics and AI – Public reprimand for fake cites with dissent that sanction should be stronger.

Disclosure order upheld

• Texas Appeals Court upholds order requiring attorney who used fake citations to include all cited authorities in all future filings

NY Disciplinary & Other Proceedings/Sanctions

Reciprocal disbarments

• Matter of Ponder, 2026 NY Slip Op 01286 (1st Dept 3/5/26) – Attorney did not notify First Department that he was disbarred by Oklahoma Federal court in 2019 for, e.g., neglect of multiple clients, frivolous litigation, and failures to appear for discovery hearing.

• Matter of Jeang. 2026 NY Slip Op 01285 (1st Dept 3/5/26) – Disbarred in California, primarily because she misappropriated than $4 million in escrow funds. Failed to respond to complaint initiated by Grievance Committee here.

Previously suspended for non-compliance with Judiciary Law § 468–
Attorneys suspended for continuing to practice law after being suspended for failure to register and certify CLE compliance

• Matter of Cantor, 2026 NY Slip Op 01281 (1st Dept3/5/26)
• Matter of Sposato, 2026 NY Slip Op 00783 (2d Dept 2/11/26) –

Defense attorney censured for client neglect

• Matter of Cruikshank, 2026 NY Slip Op 00650 (3d Dept 2/11/26) – Criminal defense attorney first censured after disregarding Second Circuit’s inquiry into his failure to effectively and timely prosecute his client’s criminal appeal in federal court. Following the Second Circuit’s finding of misconduct, the Attorney Grievance Committee moved to impose further discipline. In light of counsel’s admission “that he struggles with managing his caseload, as well as with the ‘mental and emotional stressors’ of his work as an attorney,” he was directed to provide specific information concerning his efforts to address those challenges, and censured again