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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 2-29-26

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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MEASUREMENT OF THE SIX-MONTH GRACE PERIOD FOR THE FILING OF A NEW ACTION AFTER DISMISSAL (WHICH WOULD OTHERWISE BE TIME-BARRED) PURSUANT TO CPLR 205(A) AND CPLR 205-A CLARIFIED IN AN OPINION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, clarified how the six-month grace period for filing a new action after dismissal (CPLR 205(a) and 205-a) is measured:

This appeal provides our Court with an occasion to resolve some inconsistencies in decisional authority regarding the timing of the termination event from which the six-month grace period under CPLR 205(a) and 205-a are measured. Under certain circumstances, both statutes permit the plaintiff a six-month window to recommence an action that otherwise would be untimely, measured from the “termination” of a prior action. Is the termination of the prior action the date an order of dismissal is executed by the court, the date the order of dismissal is entered with the clerk, or the date that the order of dismissal is served upon other parties with notice of entry? Is the termination of the prior action delayed 30 days for the potential filing of a notice of appeal pursuant to CPLR 5513(a) or a motion for leave to reargue pursuant to CPLR 2221(d), and further delayed by the appellate process when an actual appeal is undertaken, or is there no termination of the prior action until a final judgment is entered or served with notice of entry? The answer to these questions may make a crucial mathematical difference to the timeliness or untimeliness of actions commenced within or without the six-month grace periods under CPLR 205-a and 205(a). We conclude, for reasons stated below, that when no appeal is taken by a party from an order of dismissal, the six-month period for recommencing an action under CPLR 205-a, and by extension under CPLR 205(a), begins to run once 30 days have elapsed following service of the order of dismissal with notice of entry. HSBC Bank USA, N.A. v Hillaire, 2026 NY Slip Op 00353, Second Dept 1-28-26

Practice Point: Consult this opinion for a definitive discussion of how the six-month grace periods for the filing of a new otherwise time-barred action after dismissal pursuant to CPLR 205(a) and 205-a are measured.​

 

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THE PROBATION-CONDITION REQUIRING DEFENDANT TO PAY THE MANDATORY SURCHARGE AND COURT FEES WAS STRUCK BECAUSE DEFENDANT IS INDIGENT; THE FACIAL CONSTITUTIONAL CHALLENGES TO PROBATION CONDITIONS WERE NOT PRESERVED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined (1) the challenge to the probation condition that defendant pay the mandatory surcharge and court fees survives the waiver of appeal; (2) the condition should be struck because defendant is indigent; (3) the facial constitutional challenges to probation conditions were not preserved:

In determining whether a condition is reasonably necessary and related to a defendant’s rehabilitation, the Court must consider the particular circumstances of a defendant’s case … .

Defendant, who is indigent and a first-time offender, has only sporadic income and otherwise has been supported by his mother. Under these circumstances, the requirement that he pay a total of $375 in surcharges and fees as a condition of probation “will not assist in ensuring [that] he leads a law-abiding life and is not reasonably related to his rehabilitation” … . Accordingly, that condition is stricken. People v Acosta, 2026 NY Slip Op 00324, First Dept 1-27-26

Practice Point: The probation-condition requiring payment of the mandatory surcharge and court fees should not have been imposed on this indigent defendant.​

 

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TWO IRRELEVANT PROBATION CONDITIONS STRUCK, NON-CONSTITUTIONAL CHALLENGES TO PROBATION CONDITIONS NEED NOT BE PRESERVED; FACIAL CONSTITUTIONAL CHALLENGES SURVIVE A WAIVER OF APPEAL BUT MUST BE PRESERVED; AS-APPLIED CONSTITUTIONAL CHALLENGES ARE PRECLUDED BY THE WAIVER OF APPEAL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined (1) non-constitutional challenges to probation conditions need not be preserved for appeal; (2) although the facial constitutional challenges to probation conditions survive a waiver of appeal, they were not preserved for appeal; (3), the as-applied constitutional challenges are precluded by the waiver of appeal; and (4) two probation conditions must be struck as not relevant to defendant’s criminal history or personal life. In addition, the decision identifies several probation conditions which were deemed properly imposed in this drug-possession case:

At the time of his arrest, defendant possessed 100 glassines of heroin and 50 vials of crack cocaine. Accordingly, the sentencing court providently deemed it “reasonably necessary” to order defendant to “[a]void injurious or vicious habits; refrain from frequenting unlawful or disreputable places; and . . . not consort with disreputable people” “to insure that the defendant will lead a law-abiding life or to assist him to do so” … . Based on defendant’s selling of heroin, the court also properly ordered him to “[w]ork faithfully at a suitable employment or pursue a course of study or vocational training … that can lead to suitable employment” and to “[s]ubmit proof of such employment, study or training … . For the same reason, the court providently required defendant to submit to testing for alcohol and illegal substances and to participate in substance abuse programming … . …

There is … no evidence to support requiring defendant, who has no children, to “[s]upport dependents and meet other family responsibilities” … . … [T]here is no evidence to support requiring defendant to “[r]efrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang … “. People v Tompson, 2026 NY Slip Op 00325, First Dept 1-27-26

Practice Point: Consult this decision for insight into what probation conditions are appropriate for a drug-possession conviction.

Practice Point: Consult this decision for insight into the appealability of challenges to probation conditions.

 

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BETWEEN DEFENDANT’S GUILTY PLEA AND SENTENCING, THE COURT HELD A HEARING ON WHETHER DEFENDANT WAS ENTITLED TO ALTERNATIVE SENTENCING PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); AT THE HEARING DEFENDANT TESTIFIED SHE ACTED IN SELF DEFENSE WHEN SHE STABBED THE VICTIM; THAT TESTIMONY TRIGGERED THE NEED FOR FURTHER EXPLORATION BY THE JUDGE; THE MAJORITY APPLIED AN EXCEPTION TO THE PRESERVATION REQUIREMENT TO CONSIDER THE APPEAL AND REVERSE; TWO DISSENTERS ARGUED THE EXCEPTION TO THE PRESEVATION REQUIREMENT DID NOT APPLY (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, over a two-justice dissent, determined defendant raised a question whether defendant stabbed the victim in self-defense in open court between the plea and sentencing which the judge was required to, but failed to explore. The majority applied an exception to the preservation requirement triggered when an element of the crime is negated by the defendant in open court between the plea and the sentencing. Although nothing in the in the plea colloquy negated an element of the crime, during the post-plea hearing on defendant’s application for alternative sentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) defendant testified she acted in self defense. The two dissenters argued the exception to the preservation requirement did not apply and the appeal should not have been considered:

Defendant made no statements during the plea colloquy or at sentencing that negated an element of the crimes to which she pleaded guilty, raised the possibility of a particular defense or suggested an involuntary plea so as to implicate the narrow exception to the preservation rule … . That said, the narrow exception to the preservation rule is implicated whenever a defendant “negate[s] an element of the crime to which a plea has been entered or make[s] [a] statement[ ] suggestive of an involuntary plea” in open court between the plea and sentencing, obliging the trial court to “conduct a further inquiry or give the defendant an opportunity to withdraw the plea” … .

From the dissent:

… [D]efendant’s statements during the DVSJA hearing did not signify a lack of understanding about the nature of the charges to which she pleaded guilty or that her plea was involuntary. We are mindful that defendant’s statements during the hearing suggest that she had a potential justification defense, but the hearing was contemplated by the plea agreement itself, the statements were made for the purpose of establishing defendant’s entitlement to a reduced sentence under Penal Law § 60.12 and defendant twice reaffirmed her plea during the hearing. Notably, at the end of the hearing, defense counsel expressly stated that defendant had “knowingly plea[ded guilty to the indictment.” Under these particular circumstances and when considered in context, defendant’s postplea statements “did not raise a legitimate question about the voluntariness of [defendant’s] plea” … so as to impose upon the court a duty of further inquiry to ensure that the plea was knowing, voluntary and intelligent … . People v Brown-Shook, 2026 NY Slip Op 00172, Third Dept 1-16-26

Practice Point: Here the defendant pled guilty and moved for an alternative sentence under the DVSJA. At the DVSJA hearing she testified she stabbed the victim in self defense. There is a narrow exception to the preservation requirement when a defendant negates an element of the crime in open court between pleading guilty and sentencing. Over a two-justice dissent, the majority applied the preservation exception and reversed on the ground the judge did not explore the possibility defendant had acted in self defense.

 

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EXCESSIVE QUESTIONING BY THE TRIAL JUDGE WHICH TOOK ON THE FUNCTION AND APPEARANCE OF AN ADVOCATE DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge deprived defendant of a fair trial by excessive questioning ot eh defendant which “took on the function and appearance of an advocate.” The error was not preserved but the appeal was considered in the interest of justice:

Supreme Court engaged extensively in its own areas of inquiry, which detailed the nature of the complainant’s injury and clarified whether the injury was likely to have been intentionally caused by a sharp instrument. The court asked numerous leading questions of the People’s witness, a paramedic, as to what the paramedic observed, and guided the prosecution at length in its questioning of the paramedic. The court also assisted the prosecution in laying a foundation for the admission of evidence and repeatedly engaged in lengthy colloquies with various prosecution witnesses in order to effectively instruct these witnesses how to refresh their recollections in order to provide evidence favorable to the prosecution.

Viewing the record as a whole, the Supreme Court improperly took on the function and appearance of an advocate, at times even engaging in commentary on the testimony against the defendant, as well as on questions posed by defense counsel. The court’s conduct left the impression that its opinion favored the credibility of the People’s witnesses and the merits of the People’s case … , thus depriving the defendant of a fair trial … . People v Coleman, 2026 NY Slip Op 00145, Second Dept 1-14-26

Practice Point: Here the trial judge engaged in questioning of witnesses which took on the function and appearance of an advocate, depriving defendant of a fair trial. Although the issue was not preserved, the appeal was considered in the interest of justice.

 

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DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT THE “DISMISSAL WITHOUT PREJUDICE” OF A MOTION FOR A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) FOR FAILURE TO PROVIDE SUFFICIENT EVIDENCE CORROBORATING THAT DEFENDANT WAS A VICTIM OF DOMESTIC VIOLENCE IS APPEALABLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice LaSalle, disagreeing with the Third Department, determined that the “dismissal without prejudice” of a motion for a reduced sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) constitutes a denial of the motion which is appealable:

… [W]e disagree with the Third Department and conclude that under the plain language of CPL 440.47(3)(a), an order “dismissing” a resentencing application at step two pursuant to CPL 440.47(2)(d) is an order “denying resentencing” … , rendering it appealable as of right pursuant to CPL 440.47(3)(a). This is because the effect of an order “dismissing” a resentencing application is that the defendant has been denied resentencing. We conclude that the fact that the statute uses the word “dismiss” in CPL 440.47(2)(d) (when indicating what the court shall do with an application for resentencing that does not contain evidence corroborating the defendant’s claim that he or she was a victim of domestic violence at the time of the offense) and “denying” in CPL 440.47(3)(a) (when indicating what orders an appeal may be taken from) does not mean that the Legislature did not intend for a defendant to be able to appeal from an order determining that a defendant has failed to provide evidence … corroborating the defendant’s claim that he or she was a victim of domestic violence at the time of the offense. People v Nymeen C., 2026 NY Slip Op 00144, Second Dept 1-14-26

Practice Point: There is a split of authority on the question whether the “denial without prejudice” of a defendant’s motion for a reduced sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) is appealable. It is not appealable in the Third Department but is appealable in the Second Department.

 

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