The Right Thing

Code of Conduct

4th Quarter 2025 Ethics Cases

Brady/Giglio/Rosario & Other Discovery Issues

Court of Appeals

CPL 245.20 (1) (k) (iv)

• People v Fuentes, 2025 NY Slip Op 05872 (10/23/2025) – Because the result in this particular case would be the same regardless of which interpretation was chosen, Court declined to decide whether CPL 245.20 (1) (k) (iv)

a) “covers all impeachment material and encompasses the People’s Brady obligations, making any COC the People filed before disclosing the IAB report invalid,”

or

b) that “subject matter of the case” language “means that before filing a COC, they must turn over any impeachment evidence in their possession arising from the instant criminal case, whereas they must turn over any other impeachment evidence in their possession in time to satisfy their Brady obligations, which are not tethered to the COC requirement.”

A document is not required to be produced under CPL 245.20 (1) (k) (iv) merely because it provides additional information not found in other impeachment material, but rather when “it ‘tends to impeach’ the credibility of a testifying prosecution witness.” Where, as here, the core allegations of misconduct have already been disclosed through other documents, and the IAB report merely reiterates those allegations or provides the officer’s exculpatory account without adding new impeachment value, its non-disclosure before the initial COC does not invalidate the COC.

1st Dept

• People v Dushain, 2025 NY Slip Op 07227 (1st Dept 12/23/25). People’s failure to disclose exculpatory-impeaching evidence prompted trial court to grant CPL 440.10 motion to vacate murder conviction. First Department affirmed trial court’s refusal to vacate kidnapping and conspiracy convictions as there was “no reasonable possibility that the nondisclosure and ineffectiveness defects affected any convictions other than murder.”

2d Dept

COC Valid:

• People v Gonzalez, 2025 NY Slip Op 07397 (2d Dept 12/31/25) – “The record demonstrates that the People ‘exercis[ed] due diligence and ma[de] reasonable inquiries and efforts to ascertain the existence of, obtain, and disclose material and information subject to discovery’ (CPL 245.50[1]), as evidenced by the extensive, voluminous documents provided to the defendant with the initial [COC] and statement of readiness…. The People’s belated disclosures that accompanied the supplemental certificates of compliance were made in good faith and with due diligence, were minimal, and were voluntarily provided to the defense once the People were made aware of the existence of the undisclosed materials…. Moreover, the defendant did not request any sanctions or accommodations based upon the belated disclosures aside from seeking dismissal of the indictment.”

3d Dept

No Brady violation despite delayed disclosure

• People v Rickett, 2025 NY Slip Op 06756 (3d Dept 12/4/2025) – Brady violation does not occur if the defendant is provided the exculpatory information and granted a meaningful opportunity to use it, such as through a trial adjournment for further investigation, thereby ensuring a fair trial.

Discovery sanctions against defendant

• People v Hoffman, 2025 NY Slip Op 07247 (3d Dept 12/24/25) – Court within its discretion to preclude three of defendant’s five character witnesses as a sanction for repeated discovery violations, in addition to the repetitive nature of their testimony. Additionally, since defendant submitted proposed testimony by an expert on the eve of trial, the trial court did not abuse its discretion in limiting the testimony of defendant’s expert witness.

COC validity does not turn on prejudice

• People v Coffey, 2025 NY Slip Op 07248 (3d Dept 12/24/25) – Trial court improperly denied defendant’s challenge to the People’s COC based on a lack of prejudice. Case remitted to County Court to consider whether the COC was filed in good faith and reasonable under the circumstances.
• People v Gerhard, 2025 NY Slip Op 06761 (3d Dept 12/4/2025) – Good discussion of due diligence as to COC as “a flexible, case-specific standard that requires reasonable efforts, considering factors such as the efforts made, volume of discovery, complexity, obviousness of missing material, explanation for lapses, and the People’s response when apprised of missing discovery.”

Disclosure requirements before plea

• People v Kadar, 2025 NY Slip Op 07348 (3d Dept 12/31/25) – Where the People had an outstanding motion for a protective order, defendant’s decision to plead guilty under an offer made by Supreme Court not affected by the disclosure requirements of CPL 245.25 (2), which only applies where the prosecution has made the plea offer, and does not affect an offer directly from the Court.

4th Dept

Due diligence in producing discovery found

• People v Speed, 2025 NY Slip Op 07129 (4th Dept 12/23/25) – Court found People acted with due diligence in producing discovery because records were not in their possession at the time of the initial filing. Court also dismissed challenges to search warrants because the police recovered no incriminating evidence during those searches.

Correct standard for COC/SOR review is due diligence/reasonable inquiries, not prejudice or good faith alone

• People v Young, 2025 NY Slip Op 06452 (4th Dept 11/21/2025) – Trial court erred by conflating the standard for discovery sanctions (CPL 245.80, which involves prejudice) with the standard for evaluating the propriety of a certificate of compliance (CPL 245.50). The correct standard for a COC is whether the People exercised “due diligence and made reasonable inquiries,” and good faith alone is insufficient to cure a lack of diligence. Remitted for the trial court to apply the correct “due diligence” standard.
• People v Mosley, 2025 NY Slip Op 06484 (4th Dept 11/21/2025) – Supreme Court erred by concluding that the People’s initial COC was proper solely on the basis that the People acted in good faith with respect to their discovery obligations. The correct standard requires the court to determine whether the People satisfied their burden of establishing that they exercised due diligence and made reasonable efforts to satisfy their obligations under CPL article 245 at the time they filed their initial COC, as good faith alone is insufficient and cannot cure a lack of diligence. Remitted.

COC/SOR issue unpreserved and without merit

• People v Campbell, 2025 NY Slip Op 06407 (4th Dept 11/21/2025) – Defendant did not allege in his motion papers that the People actually possessed the material and information at issue, or that they failed to exercise due diligence to obtain such material before filing the initial COC, and the claim is thus unpreserved. Also the mere allegation that the People had not yet disclosed all initial discovery contemplated by CPL 245.20 before filing an initial COC and declaring readiness for trial does not alone, even if true, affect the validity of either the initial COC or the statement of readiness.

Post-readiness adjournment of suppression hearing chargeable to the People

• People v Beason, 2025 NY Slip Op 05598 (4th Dept 10/10/2025) – After 2 witnesses testified at suppression hearing, prosecutor announced that a third officer was “currently not allowed to come to court due to an ongoing investigation by the Attorney General’s Office.” This third officer testified at adjourned hearing 33 days later. On appeal, People conceded that those 33 days were chargeable to the prosecutions because there was nothing in the record that demonstrated the People exercised due diligence, i.e. “credible, vigorous activity to make the witness available.”

Grand Jury

1st Dept

Rejected claims that dismissal should be ordered because of flawed grand jury proceeding

• People v Dushain, 2025 NY Slip Op 07227 (1st Dept 12/23/25). In the appeal of a 440.10 motion that vacated the murder 2 conviction for a discovery violation, but upheld the kidnapping conviction (see above), the 1st Dept addressed the defendant’s claim that the GJ testiomony supporting the kidnappiung count was false. On that issue, the kidnapping victim told the GJ that another grand jury witness (who did not testify at trial) witnessed the murder. It was later determined that the other GJ witness could not have been present for the murder, but it was not clear whether the kidnapping victim’s testimony about the other person’s presence was intentionally false or honestly mistaken. Without clarity, “it cannot be said that the only grand jury evidence connecting defendant with the murder was testimony later proven to be false or incorrect.”

• People v Tracy, 2025 NY Slip Op 06029 (1st Dept 10/30/25). ADA elicited testimony of defendant’s inculpatory statement to police that he threw a knife into a dumpster, but did not put defendant’s subsequent remark, “I didn’t want to kill him; he was going to shoot me; I didn’t see a gun” before the grand jury. “[T]his potential error,” the 1st Dept concluded, did not warrant the “exceptional remedy” of the indictment’s dismissal. Even if the complete statement had been given to the grand jury, “the People would not have been required to provide a justification charge, as defendant’s statement did not suggest that he had any concrete reason to believe the victim was about to use deadly force, and he acknowledged that he never actually saw a firearm….”

2d Dept

Indictment dismissed because grand juy was not charged on justification

• People v Meade, 2025 NY Slip Op 07412 (2d Dept 12/31/25) – “[A] surveillance video shown to the grand jury indicated that the defendant approached Graves inside a store while holding a knife. Nevertheless, when viewing the evidence in the light most favorable to the defendant, there is a reasonable view of the evidence that the defendant was not the initial aggressor, Graves pointed a gun at the defendant, the defendant stabbed Graves to defend himself from the imminent use of deadly physical force against him, and the defendant could not safely retreat (see Penal Law § 35.15[2][a]).” The absence of a justification charge here so impaired the integrity of the grand jury as to require dismissal of the indictment, without prejudice to the People re-presenting charges to another grand jury.

3d Dept

Failure to give adequate justification instruction results in dismissal

• People v Caselnova, 2025 NY Slip Op 06560 (3d Dept 11/26/25) – Where defendant appeared to withdraw from the use of deadly force by taking his hand off the gun, he later reached for his gun and exchanged fire. No reasonable view of the evidence there was a subsequent withdrawal, and therefore the need for a withdrawal charge is negated. However, dismissal still warranted based upon the People’s failure to instruct the grand jury that defendant’s use of deadly force in defense of himself extended beyond the actions of the ultimate victim, and includes behaviors of third-party aggressors acting in concert with the victim. Defendant could have reasonably believed deadly force was necessary to protect himself against the entire group.

Voir Dire & Juror Issues

7/9/2025 ABA issues formal ethics opinion on discrimination in the jury selection process

• ABA Formal Opinion 517

ABA summary: “A lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g). It is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination. A lawyer may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination. However, a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law.”

2d Dept

• People v Devane, 2025 NY Slip Op 05248 (2d Dept 10/1/25) – Defendant’s Batson challenge to the prosecutor’s exercise of peremptory challenges was properly denied. His “reliance on the prosecutor’s removal of prospective Black jurors, without more, was insufficient for a prima facie showing of discrimination.”

3d Dept

• People v Saunders, 2025 NY Slip Op 07245 (3d Dept 12/24/25) – People’s response to Batson challenge was sufficiently race-neutral and non-pretextual where the prosecutor explained the juror was not interested in the news, was a student and did not work, and that they “didn’t care for” her answer to one of defendant’s questions.

Opening

4th Dept

• People v Derby, 2025 NY Slip Op 05611 (4th Dept 10/10/2025) – Prosecutor should not have characterized defendant’s selective silence as consciousness of guilt. But the single and isolated remark, to which no objection was made, did not deprive defendant of a fair trial inasmuch as Supreme Court “clearly and unequivocally instructed the jury that the burden of proof on all issues remained with the prosecution”. Additionally, any impropriety was harmless.

Direct

1st Dept

ADA properly permitted to testify at perjury trial

• People v Bryan, 2025 NY Slip Op 06033 (1st Dept 10/30/25). Even if defendant’s complaints had been preserved, App. Div. would not reverse. Trial court “providently exercised its discretion in admitting the prosecutor’s testimony to explain the grand jury process and why defendant had a motive to lie. The prosecutor never testified that the indictment implied defendant’s guilt….” Moreover, any error was harmless.

People’s case properly included evidence re Facebook messages & victim’s demeanor

• People v Zorrilla, 2025 NY Slip Op 05582 (1st Dept 10/9/25). At bench trial of Predatory Sexual Assault Against a Child charge, testimony regarding victim’s Facebook messages several years later was not improper. None of the witnesses went into detail about the revelations, and the testimony was admissible for the “relevant, nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to the defendant’s arrest;” moreover, defendant was not prejudiced by the admission of such prior consistent statements. Testimony regarding the victim’s demeanor “was permissible to aid the court in assessing her credibility.” Lastly, any error would be deemed harmless.

2d Dept

Authentication of Facebook messages and photos

• People v Loncke, 2025 NY Slip Op 07409 (2d Dept 12/31/25) – “[P]hotographs and messages from the defendant’s Facebook account were properly authenticated through testimony of a Facebook representative linking the Facebook unique identifier to both the username and vanity name provided when the account was created.”

Photo array and testimony about ID procedure

• People v Griffen, 2025 NY Slip Op 07399 (2d Dept 12/31/25) – People properly permitted, pursuant to CPL 60.30, to introduce testimony concerning the photographic identification procedure, and the photo array itself, in their case-in-chief. “Testimony about a photo array procedure, as well as the array itself, may be admitted where the procedure is ‘blinded,’ that is, where the person administering the procedure does not know the suspect’s position within the array (see CPL 60.25[1][c][ii], 60.30). To the extent that the defendant was concerned that the jury may have inferred from the photo array that he had previously been convicted of a crime, such concerns were ameliorated by the court’s limiting instructions to the jury, made both at the time the evidence was received and again during its final charge.”

Testimony re prior fentanyl sales and death of customer

• People v Hunter, 2025 NY Slip Op 07402 (2d Dept 12/31/25) – The trial court properly admitted evidence of uncharged crimes or bad acts committed by the defendant, including evidence that an individual to whom the defendant was charged with selling fentanyl died of fentanyl poisoning thereafter. The evidence “was admitted for the relevant purpose of providing necessary background information explaining the narrative of events leading to the defendant’s arrest and was relevant to establish the defendant’s intent to sell fentanyl and that the substance sold by the defendant was fentanyl. Any potential for prejudice was outweighed by the probative value of the challenged evidence and was otherwise alleviated by the court’s limiting instructions to the jury as to the purpose for which the challenged evidence was received.”

4th Dept

Store video properly authenticated circumstantially and officer opinion about identity of an item in a still photo was proper

• People v Colon, 2025 NY Slip Op 06479 (4th Dept 11/21/2025) – Interior store video was properly authenticated by “sufficient reasonable inferential linkages”: interior footage’s temporal fit with indisputedly authenticated exterior video, the identical clothing and attributes of defendant and codefendant in both, and the codefendant’s testimony identifying himself and defendant in still images from the exterior footage. Also, proper for People to elicit officer’s opinion identifying, from still image, a handgun grip protruding from defendant’s waistband as it involved “unique characteristics” requiring professional or technical knowledge beyond a typical juror’s understanding; thus, it did not invade the jury’s fact-finding function.

Narration of video by officer was harmless

• People v Jazmine D.S., 2025 NY Slip Op 06400 (4th Dept 11/21/2025) – A police witness’s narration of certain surveillance footage played for the jury provided no basis for reversal. Witness did not identify defendant in the footage; addditionally, any error in permitting the narration was harmless.

Molineux evidence of prior similar crime properly admitted and no IAC found

• People v Faes, 2025 NY Slip Op 05593 (4th Dept 10/10/2025) – In an arson case where defendant burned ex-girlfriend’s house, testimony regarding prior acts of domestic violence provided background information concerning the context and history of the relationship, and testimony about a prior arson incident against the same victim established intent and absence of mistake or accident. Also IAC claim denied. The single error alleged here – consenting to an improper peremptory challenge sequence – was not sufficiently egregious on its own to warrant reversal.

Cross-examination

1st Dept

• People v Tracy, 2025 NY Slip Op 06029 (1st Dept 10/30/25) – Prosecutor “permissibly confronted defendant with three prior inconsistent statements…to impeach his credibility. This limited cross-examination did not imply that defendant’s self-defense claim was a recent fabrication.”
• People v Jose S., 2025 NY Slip Op 05476 (1st Dept 10/7/25) – People properly permitted to use, in cross-examination of defendant, a photo of defendant alongside alleged gang members while making gang symbols. Probative value of the photo outweighed its prejudicial effect, “especially after defendant denied being affiliated with the gang in question.”

3d Dept

• People v Benton, 2025 NY Slip Op 06559 (3d Dept 11/26/25) – Where defendant was on trial for engaging in sexual conduct with a child in a YMCA family locker room, trial court abused its discretion in permitting the People to cross-examine defendant on two uncharged matters (one involving a cell phone recording in a bathroom and the other concerning defendant’s conduct while employed as a lifeguard) because the prejudicial effect would far outweigh any probative value on defendant’s credibility. Note: this evidence was offered as part of the People’s Sandoval application, rather than potential Molineux.

Re-direct/Rebuttal

3d Dept

• People v Saunders, 2025 NY Slip Op 07245 (3d Dept 12/24/25) – Though defendant’s statement refusing to provide a voluntary DNA sample had previously been suppressed, defendant’s cross-examination opened the door by creating a misleading impression that the police never sought a DNA sample from defendant. Suppressed statement properly admitted with a limiting instruction.
• People v Saunders, 2025 NY Slip Op 07245 (3d Dept 12/24/25) – Where a cooperating accomplice testified on cross-examination that he could lose the benefit of his cooperation agreement if his testimony did not implicate defendant, the People were permitted to play a recording of defendant and the accomplice implicating themselves for the limited purpose of rebutting the claim of recent fabrication.

Summation

1st Dept

• People v Thompson, 2025 NY Slip Op 05645 (1st Dept 10/14/25) – “In response to defense counsel’s arguments challenging the identification procedures, the credibility of the witnesses, and the surveillance videos, the prosecutor permissibly marshaled the evidence, commented on the witnesses’ testimony, and urged the jury to review the surveillance video footage and compare it to other evidence. These remarks ‘constituted fair comment on the evidence and reasonable inferences to be drawn therefrom’…. The prosecutor’s suggestion that defense counsel’s cross- examinations and arguments focused on collateral matters, diverting the jury from relevant issues, ‘did not exceed the broad bounds of rhetorical comment permissible in summation’….”

Conflict of Interest/Appearance of Impropriety

Court of Appeals

Special District Attorney must qualify for appointment under County Law § 701

• Conviction reversed and indictment dismissed because county court did not have authority to appoint a lawyer, who did not satisfy the residency/office requirement of County Law § 701 (1) (a), as Special District Attorney. Moreover, issue may be raised for the first time on appeal. People v Callara, 2025 NY Slip Op 05739 (10/16/2025).

Court of Appeals did not overrule precedent concerning Special ADAs or AAGs under the supervision of the county’s elected District Attorney, “who retained ultimate prosecutorial authority.”

NY Disciplinary & Other Proceedings/Sanctions

Public Censure of former ADA

• Matter of Glenn D. Kurtzrock, 2025 NY Slip Op 06708 (2d Dept 12/3/25) – Respondent was an ADA who was suspended for 2 years in 2021 because of his misconduct, including a failure to disclose exculpatory material, in a home invasion-murder prosecution (Matter of Kurtzrock, 192 AD3d 197). After sustaining the Special Referee’s report, the 2d Dept ordered Kurtzrock publicly censured for professional misconduct for other misconduct bewtween 2011 and 2015, while he was an ADA.

Failure to Review Filings

• Matter of Angus Ni, 2025 NY Slip Op 05893 (1st Dept 10/23/2025) – Reciprocal suspension (attorney had been suspended from practice before the US Patent & Trademark Office) for failure to review filings of non-lawyers in violation of Rules 1.1, 1.3, 3.3, 5.3, 5.5, 8.4.

Miscellaneous

Court of Appeals

Erroneous CPL 30.30 (5-a) certification

• People v Williams, 2025 NY Slip Op 06535 (11/25/2025) – When a count in a local criminal court accusatory instrument is accompanied by an inaccurate or incorrect CPL 30.30 (5-a) certification, the appropriate remedy is dismissal of the defective count, not invalidation of the People’s statement of readiness or dismissal of the entire accusatory instrument. The statute’s purpose is to make trial readiness a singular event for the entire accusatory instrument, ending the practice of partial readiness, and not to impose the severe sanction of dismissing the entire instrument for the insufficiency of a single count, especially when facial sufficiency can be subject to reasonable disagreement.

1st Dept

• People v Saunders, 2025 NY Slip Op 07103 (1st Dept 12/18/25). Court rejected People’s effort to salvage criminally negligent homicide conviction on appeal by advancing an alternative theory of culpability. “Having deprived defendant of an opportunity to defend against it, they are foreclosed from doing so now on appeal.”

Lapse of 4 years between arraignment and guilty plea did not violate constitutional right to speedy trial

• People v Holley, 2025 NY Slip Op 05747 (1st Dept 10/16/25) – After assessing the Taranovich factors, the First Department concluded that the vast majority of the delay was due to the unavoidable impact of the COVID-19 pandemic on New York’s courts, adjournments sought by the defense, and “for possible disposition or other reasons not attributable to the People.” Additionally, defendant failed to make “an adequate showing of specific prejudice.”

3d Dept

No audiovisual coverage permitted during trial

• People v Mack, 2025 NY Slip Op 06757 (3d Dept 12/4/2025) – New York Civil Rights Law § 52 strictly prohibits audiovisual coverage of testimonial portions of court proceedings, and violation constitutes reversible error.

Defendant’s STD diagnosis was privileged information

• People v Gomez, 2025 NY Slip Op 06929 (3d Dept 12/11/25) – Defendant’s physician’s testimony about his chlamydia diagnosis went beyond the physician’s limited reporting obligation and should have been suppressed as covered by physician-patient privilege. However, the error was harmless.

AI Use

November 17, 2025: NY Courts’ proposal to add a new Rule on AI

• Read the Proposal – Public comment period ended December 29, 2025

Public censure for papers with non-existent cites and quotes

• Matter of Anthony Matos, 2025 NY Slip Op 06257 (1st Dept 11/13/2025) – Reciprocal public censure for filing brief with non-existent quotes and citations generated by AI. Original jurisdiction issued a public reprimand and required attorney to attend two hours’ CLE on generative AI in the practice of law. First Dept held that misconduct violated Rules 1.1(a), 1.3(a), 8.4(c), and 8.4(d) of the New York Rules of Professional Conduct (22 NYCRR 1200.0).

News From Other States

• Judge’s Order Against Use of LinkedIn for Research on Potential Jurors Led to Alston & Bird’s $10,000 Fine, Sanction for Violating Ban (Law.com 10/31/2025) – Law firm failed to notify/supervise jury consultant.
  • Hon. William Orrick’s Standing Order re Juror Questionnaires and Social Media Research (August 2023)

The judge wrote he remained “convinced that the standing order is appropriate” as the “advent of various surveillance tools” and the Internet, smartphones and social media had “eroded” individual privacy since the mid-1990s.