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THE FAILURE TO GIVE THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR HERE, BUT WAS HARMLESS ERROR IN THE CODEFENDANT’S APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defense request for a circumstantial evidence jury instruction should have been granted. Defendant and his uncle were charged with murder, robbery and criminal possession of a weapon. The uncle was convicted and the Fourth Department ruled that the failure to give the circumstantial evidence jury instruction was harmless error. However the evidence against defendant was weaker and the jury charge may well have led to an acquittal:

… [W]e agree with defendant that the court erred in denying the request for a circumstantial evidence charge … . As we noted in the codefendant’s appeal, “[a]lthough surveillance video footage of a crime can constitute direct evidence . . . , it did not constitute direct evidence here. Defendant’s identity cannot be discerned clearly from the surveillance video footage offered at trial inasmuch as the perpetrators in the videos are masked” … .

We concluded in the codefendant’s appeal that the court’s failure to give the circumstantial evidence charge was harmless given that the codefendant and his vehicle could be tracked to the scenes of the offenses based upon cell phone data, license plate readers, and surveillance video (McEnnis, 247 AD3d at 1475-1476). Here, however, the evidence of defendant’s involvement was substantially less. While one perpetrator on the surveillance video generally matched defendant’s height and build, no witness identified him at the scene of any of the robberies. Moreover, as the People’s expert acknowledged, the expert had “no location information” for defendant’s phone at the times that the alleged incidents occurred. Although the evidence at trial established that defendant exchanged text messages and calls with the codefendant on the dates of the offenses and that the codefendant drove to defendant’s apartment building in Niagara Falls prior to and after the offenses, the People’s expert conceded that he could do little more than “speculate [as to] where [defendant] was during [those] periods of time” when the robberies were being committed. Thus, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Coleman, 2026 NY Slip Op 04629. Fourth Dept 7-24-26

Practice Point: Defendant and his uncle were charged with murder and robbery and tried separately. The failure to give the circumstantial evidence jury instruction was harmless error in the uncle’s trial. But it was reversible error in defendant’s trial because the evidence tying defendant to the crimes was weaker.

 

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THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; MANSLAUGHTER CONVICTION REVERSED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s manslaughter conviction, determined the People did not disprove the justification defense. The evidence demonstrated shots were fired at the car in which defendant was a passenger before defendant fired his weapon:

A person is justified in using deadly physical force against another person if they “reasonably believe[ ] that such other person is using or about to use deadly physical force” (Penal Law § 35.15 [2] [a]). Deadly physical force “encompasses not merely the striking of the first blow or infliction of the first wound. It also encompasses acts by a person that cause the defendant reasonably to believe that the defendant is facing the ‘imminent threat’ of deadly force,” and therefore “the imminent threat to use a gun constitute[s] the threat of deadly physical force even if the gun is never fired” … . The evidence at trial established that defendant told the police that the unnamed assailants started shooting at the occupants of the vehicle before any shots were fired by those inside the vehicle. A witness to the shootout testified that she saw one of the unnamed assailants remove a gun out of his pocket and then she saw and heard gunshots. The evidence further established that multiple rounds were fired at the vehicle from the outside. Contrary to the People’s contention, they did not establish beyond a reasonable doubt that defendant, who was not the driver of the vehicle, could have retreated with complete personal safety before he used deadly physical force, or that he knew he could do so … . People v Major, 2026 NY Slip Op 04585, Fourth Dept 7-24-26

Practice Point: Multiple shots were fired at the vehicle in which defendant was a passenger before defendant fired his weapon. The People failed to disprove the justification defense and the manslaughter conviction was reversed.

 

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DEFENDANT DRIVER STRUCK PLAINTIFF PEDESTRIAN AS HE ATTEMPTED TO CROSS THE ROAD; DEFENDANT DID NOT DEMONSTRATE SHE COULD NOT HAVE SEEN PLAINTIFF AND COULD NOT HAVE AVOIDED STRIKING PLAINTIFF; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant driver did not demonstrate she could not have seen plaintiff pedestrian and could not have avoided striking plaintiff as he attempted to cross the road:

… [D]efendant, “as the movant for summary judgment, had the burden of establishing as a matter of law that [she] was not negligent or that, even if [she] was negligent, [her] negligence was not a proximate cause of the accident” … . Defendant failed, however, to meet her initial burden with respect to either her negligence or proximate cause. Although the evidence submitted by defendant established that she was not speeding, was not impaired and had not committed any traffic violations, defendant’s evidence included, inter alia, deposition testimony from a driver of an eastbound vehicle who observed plaintiff begin to cross his lanes of traffic, and that driver testified that he was able to swerve and avoid colliding with plaintiff. Defendant’s submissions indicate that plaintiff then proceeded through the median area between the eastbound and westbound lanes and then attempted to cross the westbound lanes, whereupon he collided with defendant’s vehicle.

We agree with plaintiff that defendant’s own evidence raises triable issues of fact whether she ” ‘could have seen [plaintiff] before the accident and failed to exercise due care to avoid the accident’ ” (Uhteg, 200 AD3d at 1697). In Uhteg, as here, “the pedestrian had already crossed a few lanes of traffic and had done so at a pace faster than a walk but not fully a run” … . Moreover, there is no evidence that defendant’s view of the oncoming lanes or median area was obscured … . Koff v Lawson, 2026 NY Slip Op 04582, Fourth Dept 7-24-26

Practice Point: Consult this decision for a discussion of what a defendant must demonstrate for summary judgment where defendant driver strikes plaintiff pedestrian as plaintiff attempted to cross the road.

 

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TO RENDER THE “HARMLESS ERROR” DOCTRINE INAPPLICABLE, THERE MUST BE “OVERWHELMING” EVIDENCE OF GUILT, WHICH IS MORE THAN “PROOF BEYOND A REASONABLE DOUBT;” HERE THERE WAS “OVERWHELMING” EVIDENCE OF GUILT FOR THE BURGLARY COUNTS, BUT ONLY “PROOF BEYOND A REASONABLE DOUBT” FOR THE SHARED INTENT ELEMENT OF THE ASSAULT COUNT; THEREFORE THE ERROR IN ADMITTING IDENTIFICATION EVIDENCE COULD NOT BE DEEMED HARMLESS FOR THE ASSAULT COUNT AND A NEW TRIAL ON THAT COUNT WAS ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s assault conviction, determined the evidence defendant shared the codefendant’s intent to cause physical injury was not “overwhelming,” therefore the harmless error standard did not apply. The error, which was deemed harmless for other counts for which the evidence was deemed “overwhelming,” was the introduction of identification evidence where no CPL 710.30 notice was provided by the People. The motion court determined the identification was “confirmatory,” but the Fourth Department disagreed because the victim only met defendant once for a few minutes:

An identification is considered confirmatory only where, “as a matter of law, the witness is so familiar with the defendant that there is ‘little or no risk’ that police suggestion could lead to a misidentification” … . “In effect, it is a ruling that however suggestive or unfair the identification procedure might be, there is virtually no possibility that the witness could misidentify the defendant” … . The exception “does not apply where the familiarity emanates from a brief encounter” … .

Here, the victim testified at the Rodriguez hearing that he had met defendant only once before the crimes were committed, and then for only a few minutes. Under the circumstances, it cannot be said, as a matter of law, that there was ” ‘little to no risk’ ” of misidentification resulting from an unduly suggestive photo array or identification procedure … . * * *

The People were required to prove, among other things, that defendant shared the codefendant’s intent to cause physical injury to the victim, and they proved beyond a reasonable doubt that defendant shared the requisite intent by presenting evidence that defendant punched the victim upon entering the apartment, albeit with no discernable effect. Overwhelming proof of guilt, however, is a greater burden than proof beyond a reasonable doubt … and, in our view, the evidence as it relates to the intent element of assault in the second degree does not satisfy that burden. The harmless error doctrine is thus inapplicable with respect to the assault charge … . We therefore modify the judgment by reversing that part convicting defendant of assault in the second degree, granting the part of the omnibus motion seeking preclusion of the identification testimony, and granting defendant a new trial on count 3 of the indictment. People v Hurst, 2026 NY Slip Op 04717, Fourth Dept 7-24-26

Practice Point: This decision highlights a difference between a “legal sufficiency” and a “weight of the evidence” analysis on appeal. Under a “weight of the evidence” analysis, if the proof of guilt is “beyond a reasonable doubt” (i.e., legally sufficient), but is not “overwhelming,” the harmless error doctrine in inapplicable. [EDITOR’S NOTE: I HAVE DIFFICULTY UNDERSTANDING THE CRITERIA FOR “LEGAL INSUFFICIENCY” VERSUS “AGAINST THE WEIGHT OF THE EVIDENCE” AT THE APPELLATE LEVEL. THIS DECISION APPEARS TO ILLUSTRATE ONE OF THE DIFFERENCES. IF ANYONE CAN HELP ME UNDERSTAND THE RELEVANT ANALYTICAL CRITERIA, I WOULD BE MOST GRATEFUL.]

 

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THE FAILURE TO GIVE THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR HERE, BUT WAS HARMLESS ERROR IN THE CODEFENDANT’S APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defense request for a circumstantial evidence jury instruction should have been granted. Defendant and his uncle were charged with murder, robbery and criminal possession of a weapon. The uncle was convicted and the Fourth Department ruled that the failure to give the circumstantial evidence jury instruction was harmless error. However the evidence against defendant was weaker and the jury charge may well have led to an acquittal:

… [W]e agree with defendant that the court erred in denying the request for a circumstantial evidence charge … . As we noted in the codefendant’s appeal, “[a]lthough surveillance video footage of a crime can constitute direct evidence . . . , it did not constitute direct evidence here. Defendant’s identity cannot be discerned clearly from the surveillance video footage offered at trial inasmuch as the perpetrators in the videos are masked” … .

We concluded in the codefendant’s appeal that the court’s failure to give the circumstantial evidence charge was harmless given that the codefendant and his vehicle could be tracked to the scenes of the offenses based upon cell phone data, license plate readers, and surveillance video (McEnnis, 247 AD3d at 1475-1476). Here, however, the evidence of defendant’s involvement was substantially less. While one perpetrator on the surveillance video generally matched defendant’s height and build, no witness identified him at the scene of any of the robberies. Moreover, as the People’s expert acknowledged, the expert had “no location information” for defendant’s phone at the times that the alleged incidents occurred. Although the evidence at trial established that defendant exchanged text messages and calls with the codefendant on the dates of the offenses and that the codefendant drove to defendant’s apartment building in Niagara Falls prior to and after the offenses, the People’s expert conceded that he could do little more than “speculate [as to] where [defendant] was during [those] periods of time” when the robberies were being committed. Thus, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Coleman, 2026 NY Slip Op 04629. Fourth Dept 7-24-26

Practice Point: Defendant and his uncle were charged with murder and robbery and tried separately. The failure to give the circumstantial evidence jury instruction was harmless error in the uncle’s trial. But it was reversible error in defendant’s trial because the evidence tying defendant to the crimes was weaker.

 

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DEFENDANT’S SHOWING A HANDGUN TO HER EX-BOYFRIEND DID NOT CONSTITUTE “DISPLAYING” THE WEAPON IN FURTHERANCE OF THE OFFENSE; THEREFORE THERE WAS NO IMPEDIMENT TO REMOVING THE SEVENTEEN-YEAR-OLD DEFENDANT’S “CRIMINAL POSSESSION OF A WEAPON” CASE TO FAMILY COURT (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Nowak, over an extensive dissent, determined the seventeen-year-old defendant’s showing her ex-boyfriend a handgun she had on her person dis not amount to “displaying” the weapon such that the case could not be removed to Family Court:

… [D]efendant was charged with a violent felony (see Penal Law § 70.02 [1] [b]), and thus the People could prevent removal to Family Court without a formal motion under one of the CPL 722.23 (2) (c) exceptions, i.e., as relevant here, that defendant “displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of [the charged] offense[s]” (CPL 722.23 [2] [c] [ii]; see Penal Law §§ 265.02 [3]; 265.03 [3]). * * *

… [D]efendant did not “further” her possession of the weapon merely by displaying it to her ex-boyfriend, even if she did so to emphasize her control of the handgun … .Every display of a handgun emphasizes control by the person possessing it, and thus every display would always further the charged offense. So too with the dissent’s proposed construction. Every display of a weapon provides evidence of possession—it is not possible to display the weapon without possessing it—and thus there would always be a “logical nexus” between a display and the possessory offense … . Either reading would effectively render meaningless the separate statutory requirement that the display “further[ ]” the charged offense (CPL 722.23 [2] [c] [ii]). Had the legislature wished to do so, it could have required that the People demonstrate only that the adolescent offender “displayed” a designated weapon, and stopped there, without also requiring that the offender did so “in furtherance of” the charged offense (CPL 722.23 [2] [c] [ii]). That language must be given effect and interpreted to require something more than merely displaying the weapon … . People v Neyshaliz M. V., 2026 NY Slip Op 04581, Fourth Dept 7-24-26

Practice Point: Consult this opinion for a discussion of what it means to “display” a weapon “in furtherance” of the charged offense (criminal possession of a weapon). Merely showing the weapon to defendant’s ex-boyfriend did not amount to displaying the weapon in furtherance of the offense.

 

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PRESENTING THE GRAND JURY WITH EVIDENCE SUBSEQUENTLY RULED IRRELEVANT DID NOT AMOUNT TO PROSECUTORIAL MISCONDUCT WARRANTING DISMISSAL OF THE INDICTMENT (FOURTH DEPT). ​

The Fourth Department, in a full-fledged opinion by Justice Curran, reversing County Court, determined the prosecutor’s presentation of evidence to the grand jury which was subsequently ruled irrelevant did not amount to misconduct warranting dismissal of the indictment. Defendant drove his car at high speed in poor road conditions. The car left the road, crashed and burned. The two passengers were killed. Defendant was charged with criminally negligent homicide. Driving at a high speed in poor road conditions, without more, will not support criminally negligent homicide. The prosecutor presented evidence of a blood test which indicated defendant had used marijuana to meet the criteria for criminally negligent homicide. When County Court determined the marijuana evidence was irrelevant because there was no proof the marijuana-use affected defendant’s ability to operate the car, County Court dismissed the indictment. The Fourth Department found that the presentation of the irrelevant evidence was not “prosecutorial misconduct” which justified dismissal of the indictment:

… [W]e conclude that the court erred in granting defendant’s renewed motion on the ground that the grand jury proceedings were rendered defective due to prosecutorial misconduct. At the outset, it is worth noting what is not at issue here. Specifically, we note that there is no evidence in this case that the People, in introducing the cannabinoid evidence to the grand jury, intentionally engaged “in an over-all pattern of bias and misconduct” that was “pervasive” and “willful” (Thompson, 22 NY3d at 699 [internal quotation marks omitted]). There also is no evidence that, in introducing the challenged evidence, the prosecutor was “motivated by bias or a desire to deceive the grand jury” (id. at 706) or that there was any “nefarious design to deliberately cause unfairness to defendant” (People v Wisdom, 23 NY3d 970, 973 [2014]).

Rather, the court’s conclusion that the People had impaired the integrity of the grand jury proceedings through misconduct was predicated on its determination that the People had improperly introduced the cannabinoid evidence—evidence that was later found to be irrelevant. In so concluding, the court failed to explain how the People’s reliance on the allegedly flawed cannabinoid evidence met the dismissal standard set forth by the Court of Appeals in the aforementioned cases. Indeed, it is quite clear from those decisions that a mere error or flaw by a prosecutor in presenting evidence does not, in fact, meet the demanding test for establishing entitlement to dismissal due to the impairment of the integrity of the grand jury proceedings … . People v Stencel, 2026 NY Slip Op 04574, Fourth Dept 7-24-26

Practice Point: Consult this opinion for a discussion of the nature of prosecutorial misconduct at the grand jury stage which mandates dismissal of the indictment, not the case here.

 

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PLAINTIFFS, RESIDENTS OF EAST BUFFALO, STATED CAUSES OF ACTION AGAINST THE STATE FOR VIOLATION OF THE PUBLIC TRUST DOCTRINE AND VIOLATION OF THE GREEN AMENDMENT TO THE NEW YORK CONSTITUTION BY THE CONSTRUCTION OF AN EXPRESSWAY (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Nowak, over an extensive dissent, determined the complaint alleging the State, in constructing an expressway, violated the public trust doctrine and the Green Amendment, should not have been dismissed:

Plaintiffs are individual residents of East Buffalo who contend that they suffered adverse health consequences due to traffic on a nearby expressway (portions of New York State Routes 33 and 198) and an unincorporated association of people who live or work near the expressway. They commenced this action alleging that defendants: (1) violated the public trust doctrine by alienating parkland comprising the former Humboldt Parkway for the construction of the expressway; and (2) are violating the Green Amendment to the New York State Constitution (NY Const, art 1, § 19) by continuing to maintain and operate the expressway. * * *

Having expressly granted authority to construct arterial highways within parks in other cities and having declined to do so with respect to Humboldt Parkway, it cannot be said as a matter of law that the legislature “plainly conferred” the alienation of Humboldt Parkway … . * * *

The Green Amendment to the New York State Constitution states that “[e]ach person shall have a right to clean air and water, and a healthful environment” (NY Const, art I, § 19 …). Plaintiffs specifically allege in the amended complaint that the Green Amendment is self-executing, and defendants did not dispute that contention below. East Side Parkways Coalition v New York State Dept. of Transp., 2026 NY Slip Op 04562, Fourth Dept 7-24-26

Practice Point: Here plaintiffs, residents of East Buffalo who live near an expressway, stated causes of action against the State stemming from the construction of the expressway on land which once served as a park.

 

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WHEN DEFENDANT TOLD THE JUDGE “MY LAWYER IS INEFFECTIVELY COUNSELING ME” THE JUDGE MADE NO INQUIRY INTO THE BASIS FOR THE STATEMENT AND SHUT DOWN ANY FURTHER STATEMENTS BY THE DEFENDANT; THE MAJORITY CONCLUDED THAT WAS REVERSIBLE ERROR; THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing the conviction and ordering a new trial, over a dissent, determined the judge’s failure to conduct any inquiry when defendant requested new counsel was reversible error:

A defendant may be entitled to new counsel “upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel … . The defendant’s request “may not be used merely to delay the orderly administration of justice” … . It must be supported by “specific factual allegations of serious complaints about counsel” … . Once the court determines that defendant’s request is not “merely to delay” but is “seemingly serious,” the court is required to make a minimal inquiry before exercising its discretion to grant or deny substitution of counsel … .

However, before the court can determine whether the defendant’s allegations are sufficiently serious to warrant minimal inquiry, it must at the very least allow the defendant the opportunity to make the allegations … . Thus, this Court has repeatedly held that a defendant is entitled to a new trial where the trial court “denied [a] request for new counsel without making any inquiry into the substance of his request, and without giving defendant any opportunity to explain the basis for his request” … . * * *

In this case, after jury selection was complete and as the jurors were about to enter the courtroom, defendant told the court, “I feel I’m not getting a fair trial. I’m not even prepared for a trial. My lawyer, my lawyer is ineffectively counseling me . . . . [a]nd also representing me.” The court responded that “You made your record” and “I’m not relieving your counsel. Don’t interrupt me.” Defendant tried to continue his request and stated, “I asked for a lab report. He gave me a field test.” The courtinterjected and instructed defendant to “not interrupt me” and warned that “[i]f you do this kind of behavior, particularly if the jury is here, it’s going to be a problem, okay. So just get yourself under control.” The court’s admonition effectively foreclosed any further discussion. People v Cooper, 2026 NY Slip Op 04561, First Dept 7-23-26

Practice Point: When a defendant tells the judge he is not being effectively represented by counsel, the judge should make at least a minimal inquiry. Here the failure to make any inquiry into the basis of defendant’s statement was deemed reversible error.

 

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THE PARTIES IN THIS DIVORCE PROCEEDING ENTERED A LITIGATION FUNDING AGREEMENT IN WHICH DEFENDANT ADVANCED FUNDS TO PLAINTIFF IN RETURN FOR THE ASSIGNMENT OF PROCEEDS FROM THE DIVORCE CLAIM; DESPITE THE INCLUSION OF THE TERM “THIS IS NOT A LOAN” IN THE AGREEMENT, THE FIRST DEPARTMENT HELD THE AGREEMENT WAS IN FACT AN INVALID LOAN AT A USURIOUS 18.96% ANNUAL INTEREST RATE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Michael, reversing (modifying) Supreme Court, determined the parties’ divorce-litigation funding agreement was a usurious loan, not an investment, and was therefore void and unenforceable:

The parties entered into a Purchase and Sale Agreement, dated May 23, 2018 (the PSA), wherein defendant agreed to advance approximately$200,000 to plaintiff to fund the legal costs of plaintiff’s pending divorce action. In return, plaintiff agreed to assign to defendant his right to receive any proceeds from the divorce claim up to the amount owed to defendant under the PSA. The “Proceeds” consisted of “the total recovery from the Claim” and the “Claim” was defined as plaintiff’s right, title, and interest in and to any amount granted to plaintiff in connection with his pending divorce action, any appeal or settlement with respect thereto, and any related action. * * *

The PSA clarified that “THIS IS NOT A LOAN” and was expressly contingent on plaintiff’s “successful” recovery on the Claim. It proclaimed that “[i]f there is no recovery on the Claim, nothing will be owed to [defendant].” Yet, several provisions of the PSA together with the Sweetheart Guaranty … , entitled defendant to recoup the money it advanced plus interest even if “there is no recovery on the Claim,” such as in the event of plaintiff’s death or reconciliation with his wife. * * *

Considering the totality of the circumstances … , we find that the parties’ PSA was in fact a loan. The only remaining question is whether the loan was usurious. A loan is usurious if the interest exceeds the maximum legal rate of 16% (see General Obligations Law § 5-501[1], [2]; Banking Law § 14-a[1]). It is undisputed that under the PSA, interest accrued at 18.96% annually, which exceeds the legal limit. Denemark v New Ch. Capital, Inc., 2026 NY Slip Op 04553, First Dept 7-23-26

Practice Point: Consult this opinion for insight into when an agreement constitutes a “loan” subject to the usury law rather than an “investment.”

 

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