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TWO PEOPLE WERE SHOT IN A DRIVE-BY SHOOTING; DEFENDANT, IN THE PLEA ALLOCUTIONS, DID NOT ADMIT TO FIRING SEPARATELY AT EACH VICTIM; THEREFORE THE PEOPLE DID NOT MEET THEIR BURDEN TO SHOW THE COMMISSION OF TWO DISTINCT CRIMES; CONSECUTIVE SENTENCES COULD NOT BE IMPOSED (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined the prosecutor did not demonstrate that the two victims of this drive-by shooting were struck by different bullets fired separately at each, causing separate injuries to each. Therefore the judge could not impose consecutive sentences. The court noted that this issue need be preserved for appeal:​

… [T]he prosecutor should have been aware at the time of the plea, based on our unambiguous caselaw, that they had the burden of ensuring defendant allocuted to sufficient facts to establish that he separately shot at the two victims or that the victims were injured by separate bullets, in order for consecutive sentencing to be legally authorized. But because the prosecutor failed to satisfy their burden and place on the record the alleged “separate and distinct” acts underlying the two crimes … , the trial court had no legal authority to impose consecutive sentences in this case. People v Sabb, 2026 NY Slip Op 01590, CtApp 3-19-26

Practice Point: Here the defendant was never asked during the plea allocutions whether he fired two shots separately injuring the two victims. Therefore the People did not meet their burden to prove the commission of two separate crimes and consecutive sentences could not be imposed.

 

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THE JURY’S CONCLUSION THAT THE BURGLARY VICTIM SUFFERED “PHYSICAL INJURY” WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE ONLY EVIDENCE WAS THE VICTIM’S TESTIMONY HE SUFFERED PAIN AT 6 ON A SCALE OF 1 TO 10 (SECOND DEPT).

The Second Department, vacating defendant’s burglary convictions, applying a weight-of-the-evidence analysis, determined the proof the victim suffered “physical injury,” an element of the offenses, was insufficient:

The evidence, properly weighed, does not prove beyond a reasonable doubt that the victim sustained a physical injury … . Although the victim testified that he suffered pain as high as 6 on a scale of 1 to 10, he also testified that he was “in a little pain. Wasn’t much pain, but [he] was in pain.” There were no photographs of the victim’s injury and the victim testified that he never requested medical attention. Therefore, under the circumstances of this case, the verdict finding the defendant guilty of burglary in the first degree under Penal Law § 140.30 and burglary in the second degree under Penal Law § 140.25(1)(b), based solely upon the victim’s subjective testimony, was against the weight of the credible evidence … . People v Carroll, 2026 NY Slip Op 01528, Second Dept 3-18-26

Practice Point: A burglary victim’s testimony that he suffered pain at 6 on a scale of 1 to 10 did not support the jury’s finding that the victim suffered “physical injury” under a weight-of-the-evidence analysis by the appellate court.​

 

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ALTHOUGH THE JUDGE INFORMED DEFENDANT HE COULD BE SUBJECT TO AN ENHANCED SENTENCE IF HE DIDN’T APPEAR FOR THE PRESENTENCE INVESTIGATION INTERVIEW OR GOT INTO TROUBLE BEFORE SENTENCING, THE JUDGE DID NOT SPECIFICALLY INFORM DEFENDANT HE WOULD BE SUBJECT TO AN ENHANCED SENTENCE IF HE DID NOT APPEAR FOR SENTENCING; SENTENCE VACATED (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence and remitting the matter, determined defendant was not specifically informed that his failure to show up for sentencing could result in an enhanced sentence. Therefore the enhanced sentence was vacated:

In satisfaction of the indictment and other pending charges, defendant agreed to plead guilty to one count of falsely reporting an incident in the second degree and waive his right to appeal. He entered that plea upon the understanding that he would be sentenced, as a second felony offender, to two years in prison, to be followed by five years of postrelease supervision. County Court provided an oral Parker admonishment at the conclusion of the plea proceeding and warned defendant that, if he failed to appear for a scheduled presentence investigation interview or got “into further trouble, some new legal difficulties” before sentencing, it would not be bound by its sentencing commitment and could sentence him to up to four years in prison. * * *

“A sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed” … . As the People concede, County Court failed to “specifically inform [defendant] as part of the Parker admonishment that a consequence of failing to appear for sentencing was the imposition of a greater sentence” … . County Court therefore erred in imposing an enhanced sentence on that ground without first giving defendant an opportunity to withdraw his plea … . People v Gordon, 2026 NY Slip Op 01251, Third Dept 3-5-26

Practice Point: In order to impose a valid enhanced sentence if defendant fails to show up for sentencing, the judge must have specifically informed defendant of that possibility.. Here defendant was told he may receive an enhanced sentence if he didn’t attend the presentence investigation interview, which was not sufficient.

 

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THE REQUIREMENT IN THE LONG-TERM SOLITARY CONFINEMENT ACT (HALT ACT) THAT A HEARING BE HELD WITHIN FIVE DAYS OF PLACING AN INMATE IN A SEGREGATED HOUSING UNIT (SHU) IS “DIRECTORY,” NOT MANDATORY; THEREFORE ANY ISSUE RELATED TO A DELAY IN HOLDING THE HEARING MUST BE PRESERVED FOR REVIEW AND THE INMATE MUST DEMONSTRATE PREJUDICE CAUSED BY THE DELAY (THIRD DEPT).

The Second Department, in a full-fledged opinion by Justice McShan, determined the requirement that, under the Long-Term Solitary Confinement Act (HALT Act), a disciplinary hearing be held within five days of an inmate’s placement in a segregated housing (SHU) is directory, not mandatory. Therefore the issue must be preserved for review and the inmate must demonstrate prejudice resulting from any delay in holding the hearing:

… [W]hen examining the entirety of statutory provisions enacted by the HALT Act with respect to the use of segregated housing, numerous provisions expressly provide directives that limit respondent’s authority to utilize segregated housing or mandating that incarcerated individuals be released or diverted to RRU [residential rehabilitation unit] … . The exclusion of any such language from the time frame in which a hearing must be held after an incarcerated individual is placed in segregated housing suggests that it was not intended to deprive respondent of his authority to proceed with a hearing in the event of a violation. We therefore find that the language requiring that a hearing be completed no later than five days after an incarcerated individual is placed in prehearing segregated confinement remains directory under the HALT Act … . Matter of Guerrero v Martuscello, 2026 NY Slip Op 01263, Third Dept 3-5-26

 

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NONE OF DEFENDANT’S CONVICTIONS STOOD UP TO APPELLATE SCRUTINY; THE GRAND LARCENY AND CRIMINAL IMPERSONATION CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; THE COUNTS CHARGING SCHEME TO DEFRAUD AND APPEARING AS AN ATTORNEY WITHOUT BEING ADMITTED WERE DISMISSED AS DUPLICITOUS (SECOND DEPT).

The Second Department reversed the grand larceny and criminal impersonation counts, with the People’s consent, under a weight-of-the-evidence analysis. The proof demonstrated the grand larceny counts failed because the “victims” voluntarily gave defendant the money. The criminal impersonation counts failed because the defendant did not impersonate a “real person.” The scheme to defraud and “appearing as an attorney without being admitted” counts were dismissed as duplicitous:

… [T]he counts of scheme to defraud in the first degree and practicing or appearing as an attorney without being admitted and registered were duplicitous. “A count in an indictment is void as duplicitous when it charges more than one offense” … . “Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented to the grand jury or at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … . Here, neither the verdict sheet nor the jury charge explained how the testimony and evidence adduced at trial applied to the three counts of scheme to defraud in the first degree or the three counts of practicing or appearing as an attorney without being admitted and registered, including which counts pertained to which of the complainants. Under the circumstances, the challenged counts were duplicitous because it is impossible to determine the particular acts upon which the jury reached its verdict with respect to each of the counts … . People v Rafikian, 2026 NY Slip Op 01232, Second Dept 3-4-26

Practice Point: Consult this decision for an example of dismissal of indictment counts as duplicitous. It was not possible to determine which allegation in the counts was the basis of the the jury’s decision to convict.

 

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ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT, THE EVIDENCE OF THE INTENT TO COMMIT ASSAULT SECOND, WHICH INVOLVED INJURY TO POLICE OFFICERS, DID NOT SURVIVE A WEIGHT-OF-THE-EVIDENCE ANALYSIS; THE TWO JUVENILES WERE FIXATED SOLEY UPON FIGHTING EACH OTHER THROUGHOUT THE BRIEF INCIDENT (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court in this juvenile delinquency proceeding, in a full-fledged opinion by Justice Rodriguez, determined the assault second adjudications were not supported by the weight of the evidence. Two juveniles were fighting each other and police officers were injured trying to break-up the fight. The First Department found that, because the juveniles were fixated only on fighting each other throughout the incident there was insufficient evidence of an intent to interfere with the officers’ performance of their duty:

… Penal Law § 120.05 (3) provides: “A person is guilty of assault in the second degree when: . . . 3. With intent to prevent [an] officer . . . from performing a lawful duty, . . . he or she causes physical injury to such [] officer.” Accordingly, a person is guilty of the offense when their conscious objective or purpose is to prevent an officer from performing their lawful duty, the person acts in a manner consistent with that intent, and the officer is injured … . * * *

The record … lacks any indication that appellant directed his actions at the officers, whether by turning around, throwing an elbow backward, or in some other way … . …

Similarly, the evidence at the hearing did not show beyond a reasonable doubt that appellant had even a chance to recognize and consciously disregard the officers’ directives. Matter of Cynque T., 2026 NY Slip Op 01147, First Dept 2-26-26

Practice Point: Consult this decision for insight into the factors considered under a weight-of-the-evidence analysis of criminal intent.

 

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THE COURT OF APPEALS CANNOT REVIEW AN APPELLATE DIVISION’S WEIGHT-OF-THE-EVIDENCE RULING ABSENT THE APPELLATE DIVISION’S MANIFEST FAILURE TO CONSIDER THE ISSUE OR THE APPLICATION OF AN INCORRECT LEGAL STANDARD; NOT THE CASE HERE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, determined the record did not support the appellant’s argument that the Appellate Division failed to consider the weight-of-the-evidence or did so using an incorrect legal principle. Therefore the Court of Appeals could not review the weight of the evidence:

On appeal, the Appellate Division unanimously affirmed the judgment (220 AD3d 1223 [4th Dept 2023]). The Court held that the verdict was not against the weight of the evidence, stating that, “[a]lthough a different verdict would not have been unreasonable,” the jury did not “fail[ ] to give the evidence the weight it should be accorded” … . …

In Baque, we recently clarified the Appellate Division’s role in reviewing the weight of the evidence in a case involving purely circumstantial evidence. In a circumstantial evidence case, the jury must conclude that ” ‘the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence’ ” (Baque, 43 NY3d at 29 …). Observing that the Appellate Division’s function in conducting a weight review was to “independently assess all of the proof,” we explained that the Appellate Division, like the jury, must conclude that the evidence gives rise to such an inference … . We further reiterated in Baque that this Court has no power to review the Appellate Division’s decision regarding the weight of the evidence unless that Court ” ‘manifestly failed to consider the issue or did so using an incorrect legal principle’ ” … . * * *

Here, the Appellate Division expressly rejected defendant’s weight of the evidence challenge and did so by citing Bleakley and People v Danielson (9 NY3d 342, 349 [2007])—citations that we noted in Baque indicated that the Appellate Division applied the correct legal standard … .

… [W]e assume that the Appellate Division appropriately conducts its weight of the evidence review in a circumstantial evidence case, unless its decision manifestly demonstrates otherwise … . …

… [T]he Appellate Division cited …cases … indicating that the Appellate Division deferred to the jury’s credibility determinations and that it did not view this as an appropriate case in which to substitute its own credibility determinations for that of the jury … . …

In sum, Baque did not alter the longstanding principle that this Court “cannot review a weight of the evidence challenge unless the intermediate appellate court manifestly failed to consider the issue or did so using an incorrect legal principle” … . People v Anderson, 2026 NY Slip Op 00967, CtApp 2-19-26

Practice Point: Consult this opinion for the criteria for a Court-of-Appeals review of an Appellate Division’s weight-of-the-evidence ruling.

 

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IF A DEFENDANT’S GUILTY PLEA CASTS DOUBT UPON DEFENDANT’S GUILT OR THE VOLUNTARINESS OF THE PLEA, THE JUDGE MUST “INQUIRE FURTHER;” THIS ISSUE CAN BE APPEALED IN THE ABSENCE OF PRESERVATION BY A MOTION TO WITHDRAW THE PLEA OR VACATE THE CONVICTION; HOWEVER THIS EXCEPTION TO THE PRESERVATION REQUIREMENT DOES NOT APPLY IF A DEFENDANT FIRST RAISES A QUESTION ABOUT HIS GUILT AT SENTENCING (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a two-judge concurring opinion, resolving a split of Appellate Division authority, determined that a defendant who pleads guilty but subsequently claims innocence at sentencing must, to preserve the issue for appeal, make a motion to withdraw his plea of vacate his judgment of conviction:

In People v Lopez (71 NY2d 662 [1988]), we articulated a narrow exception to the rule that defendants must move before the trial court—either to withdraw their plea or vacate their judgment of conviction—to preserve their challenge to the factual sufficiency of their plea allocution. The Lopez exception applies “where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” … . If that occurs, and the trial court accepts the plea without inquiring further, “the defendant may challenge the sufficiency of the allocution on direct appeal, notwithstanding that a formal postallocution motion was not made” … .

Defendant now asks us to resolve a question that has divided the Appellate Division: does the Lopez exception apply where, as here, defendant has merely claimed at sentencing that he is not guilty of the crime to which he had previously pleaded guilty? We now clarify that, because the Lopez exception arises from a court’s duty to inquire further where a defendant’s statements prior to entry of the plea cast serious doubt on its validity, the exception does not apply to defendant’s postplea statements made at sentencing. As a result, defendant’s argument that his plea was not knowing and voluntary is unpreserved for our review because defendant did not first move to withdraw his plea or vacate his judgment of conviction. * * *

… [W]e hold that statements made at sentencing challenging the factual basis of a plea do not trigger the [judge’s] duty to inquire. … [T]he Lopez exception to the preservation doctrine does not apply. The Lopez exception is based on the trial court’s constitutional duty to ensure, prior to accepting a plea, that a defendant’s plea is voluntary, knowing, and intelligent … . Inasmuch as the Lopez exception … arises from a trial court’s failure to perform its mandatory “duty to inquire further” prior to accepting a questionable plea… , it does not apply here. People v Rios, 2026 NY Slip Op 00963, CtApp 2-19-26

Practice Point: There is no exception to the preservation requirement when a defendant first raises doubts about his guilt or the voluntariness of his plea at sentencing, as opposed to at the time of the plea. The issue must be preserved by a motion to withdraw the plea or vacate the conviction.

 

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IN 2024, ERLINGER V US HELD THAT A JURY MUST DETERMINE WHETHER A LOOKBACK PERIOD RELEVANT TO ENHANCED SENTENCING HAS BEEN TOLLED; BECAUSE THE SENTENCING COURT DETERMINED THAT ERLINGER APPLIED, AND BECAUSE THE SENTENCING COURT DID NOT HAVE THE POWER TO EMPANEL A JURY FOR RESENTENCING, DEFENDANT WAS NOT SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER; ON APPEAL THE MAJORITY HELD THAT THE ERLINGER ISSUE (I.E. WHETHER ERLINGER APPLIED) WAS NOT PRESERVED FOR APPEAL BY THE PEOPLE BECAUSE THEY EXPRESSLY DECLINED TO ARGUE IT; THE DISSENT ARGUED THE ISSUE HAD BEEN PRESERVED AND THE COURT SHOULD HAVE CONSIDERED IT (FIRST DEPT). ​

The First Department, over a comprehensive dissent, affirming Supreme Court, determined the People did not preserve the argument that the defendant should have been sentenced as a persistent violent felony offender (PFV) because Erlinger v US, 602 US 821, did not apply. The sentencing court determined Erlinger did apply. Because Erlinger held that a jury must determine whether the lookback period for PVF status has been extended by tolling, and because Supreme Court did not have the power to empanel a jury for resentencing, Supreme Court determined defendant could not be sentenced as a PVF. Defendant was sentenced as a second violent felony offender. The dissent agued the People had preserved the Erlinger issue and the First Department should have considered it:

Contrary to the dissent’s conclusion, the purpose of the preservation requirement was not served here. By expressly declining to argue that Erlinger does not apply, the People deprived defendant and the court of the opportunity to “probe [the] relevant. . . legal issues” regarding Erlinger’s applicability … .

From the dissent:

The primary question on this appeal is whether, under the United States Supreme Court’s recent decision in Erlinger v United States (602 US 821 [2024]), the Fifth and Sixth Amendments’ guarantee of a jury trial extends to the calculation of periods of tolling in measuring the lookback period used in determining whether a defendant is subject to enhanced sentencing as a recidivist felon — in this case, as a persistent violent felony (PVF) offender, to whom a 10-year lookback period applies …  If it is constitutionally required that a jury determine the tolling, New York’s procedure for making persistent violent felony offender determinations will be substantially disrupted, as Criminal Procedure Law (CPL) § 400.15(7) … provides that such determinations “must” be made at a hearing “before the court without a jury.” The impact on New York’s criminal justice system — which, according to the amicus curiae, held in custody approximately 13,500 second felony offenders and approximately 1,500 persistent felony offenders as of January 1, 2021, collectively accounting for approximately 43.8% of all state prisoners — would be grave.

In my view … the sentencing court erroneously concluded that Erlinger applied to the tolling determination required to bring one of defendant’s two prior violent felony convictions within the 10-year lookback period. Because the court correctly concluded that it had no power under the CPL to empanel a jury to make a tolling determination, it sentenced defendant as a second violent felony offender, based solely on his more recent violent felony conviction, which was within the lookback period without the need for a tolling determination. The People appeal to us from the court’s application of Erlinger, seeking to have the sentence vacated and the matter remanded so that defendant can be resentenced as a PVF offender. People v Moore, 2026 NY Slip Op 00859, First Dept 2-17-16

Practice Point: The People, as well as a defendant, must preserve issues for appeal. Here the People argued defendant should have been sentenced as a persistent violent felony offender (PVF) because Erlinger, a US Supreme Court ruling that a jury must decide lookback issues for enhanced sentencing, did not apply. The sentencing court applied Erlinger and did not sentence defendant as a PVF because a jury could not be empaneled. The People expressly declined to argue that Erlinger did not apply at resentencing and therefore did not preserve the issue for appeal.

 

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DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT A PREHEARING DENIAL OF AN APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) IS APPEALABLE; HERE DEFENDANT DID NOT DEMONSTRATE A SUFFICIENT NEXUS BETWEEN THE ABUSE HE SUFFERED WHILE LIVING WITH HIS FAMILY AND THE STABBING OF A STRANGER AFTER HE HAD LEFT HOME (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined (1) (disagreeing with the Third Department) defendant has the right to appeal from a prehearing dismissal of an application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA), and (2) the dismissal of defendant’s application was appropriate because defendant did not meet his evidentiary burden. Defendant stabbed and killed a stranger during an argument when he was 20 years old. He pled guilty to manslaughter. He applied for resentencing under the DVSJA based upon alleged abuse by family members. The application was denied, in part, because the abuse was not alleged to have been ongoing at the time of the offense:

… [T]he Third Department dismissed an appeal from a prehearing order denying a DVSJA resentencing application. The Third Department reasoned that “in enacting the DVSJA, the Legislature expressly authorized appeals as of right to an intermediate appellate court from orders denying resentencing or granting resentencing and imposing a new sentence,” but provided no such express statutory right to appeal “from an order dismissing an application for resentencing prior to a hearing” … . However, … CPL 440.47(3) specifically provides that an appeal may be taken as of right from “an order denying resentencing;” there is no language limiting that appellate right only to orders issued after a hearing is held.

… [T]he First and Second Departments have repeatedly reviewed orders denying a DVSJA resentencing application without a hearing due to a defendant’s failure to satisfy CPL 440.47(2)’s evidentiary requirements … . * * *

Cognizant of the horrific abuse that defendant suffered throughout his life, we nonetheless note that defendant had by his own admission left his adoptive parents’ home almost three years before the underlying crime.  People v Croney, 2026 NY Slip Op 00630, First Dept 2-10-26

Practice Point: In the Third Department the prehearing denial of an application for resentencing under the DVSJA is not appealable. In the First and Second Departments, a prehearing denial is appealable.

Practice Point: Here there was no question defendant had suffered horrific abuse when living with his family. But the offense was committed after defendant had left home. The DVSJA was deemed not to apply under the facts.

 

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