Appeals – Page 2 – New York Appellate Digest

ALTHOUGH THE DEFENDANT COULD HAVE BEEN ARRESTED AT THE TIME OF THE SEARCH OF HIS PERSON, HE WAS NOT, IN FACT, UNDER ARREST; THEREFORE THE KEY FOB AND THE FIREARM FOUND IN DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED; AN APPELLATE COURT CANNOT AFFIRM ON ANY ALTERNATIVE BASIS (FOURTH DEPT).

The Fourth Department, suppressing the firearm found in defendants vehicle, determined the search of defendant’s person, during the key fob for the vehicle was seized, was not a valid search incident to arrest. Although there may have existed probable cause to arrest defendant at the time of the search, the defendant had not yet, in fact, been arrested:

Even assuming, arguendo, that either the investigator or the searching officer could have arrested defendant prior to or contemporaneously with the search of his person, we note that “[a] search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not” … . A lawful search incident to arrest “requires proof that, at the time of the search, an arrest has already occurred or is about to occur” … . The search must be “substantially contemporaneous” to an actual arrest “so as to constitute one event” … . Under the circumstances of this case, we conclude that there was no actual arrest of defendant justifying the search, inasmuch as the only officer who was purported to have actually placed defendant under arrest prior to or contemporaneously with the search explicitly informed defendant that he was not under arrest at that time … . The court upheld the search as a lawful search incident to an arrest, and thus we are precluded from affirming on any alternative basis … . People v Moore, 2026 NY Slip Op 02508, Fourth Dept 4-24-26

Practice Point: If a search of defendant’s person is justified as a search incident to arrest, the defendant must, in fact, be arrested before the search.

Practice Point: Here the motion court upheld the search as a search incident to arrest; the appellate court cannot affirm on any alternative ground.

April 24, 2026

Appeals, Criminal Law

THE NEGOTIATED PLEA TO A MISDEMEANOR INFORMATION WAS VACATED AND THE DISMISSAL OF THE FELONY CHARGES WAS REVERSED; THE INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT ALLEGE EVERY ELEMENT OF THE CHARGED OFFENSE, HERE THE OPERABILITY OF THE FIREARM; THE FELONY CHARGES WERE REINSTATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Term, over a two-judge dissent, determined the misdemeanor information to which defendant pled guilty was jurisdictionally defective in that it did not allege every element of the offense, here the operability of the firearm:

At arraignment, the People stated that while there had not yet been grand jury action, the parties had agreed to a pre-indictment plea bargain whereby the defendant would plead guilty to the misdemeanor count in satisfaction of all charges in exchange for a sentence of two years’ probation. With the People’s consent, Criminal Court purported to dismiss the two felony counts by crossing them off the felony complaint. The court did not adhere to the procedure set forth in CPL 180.50 for reducing felony charges, the People did not file a superseding accusatory instrument, and the defendant did not waive prosecution by information. He nonetheless pleaded guilty to the remaining misdemeanor count, and the court later imposed the bargained-for sentence. The defendant subsequently appealed the judgment of conviction, arguing that the felony complaint was jurisdictionally defective as to the count to which he pleaded due to the absence of any allegation that the firearm was operable. * * *

We agree with the defendant that the instrument to which he pleaded guilty did not meet the prima facie case requirement because it lacked any allegations of operability. As such, it was jurisdictionally defective and could not serve as the basis for his plea. Consequently, the case should be “restored to its pre-pleading status” (CPL 470.55 [2] …). The record reflects that the felony counts were dismissed when the parties informed the court of their agreed-upon disposition, and thus the purported dismissal is best understood as an integral component of the defendant’s plea. The pre-pleading posture therefore restores the felony complaint … . The defendant fails to identify a sufficient basis for dismissal of the original, pre-pleading felony complaint, and we therefore remit for further proceedings. People v Burgess, 2026 NY Slip Op 02438, CtApp 4-23-26

Practice Point: Consult this opinion for insight into the consequences of failing to follow the proper procedure for reducing felony charges as part of a negotiated plea to an information. Here the information was deemed jurisdictionally defective on appeal, the plea was vacated, and the felony charges were reinstated.

April 23, 2026

Appeals, Criminal Law, Judges

THE JUDGE MADE NO FINDINGS TO SUPPORT EMPANELING AN ANONYMOUS JURY; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s convictions, determined the judge committed reversible error by empaneling an anonymous jury without any apparent justification (juror safety for example). In addition, the Third Department noted that the judge never ruled on an oral renewal of a motion to suppress:

… [P]rospective jurors were identified only by numbers and the record is devoid of proof that their names were ever provided to defendant, which materially heightens the risk of prejudice … . Additionally, County Court withheld prospective jurors’ names without making any findings on the record or articulating a case-specific justification for departing from the procedure mandated by CPL 270.15, explaining only that prospective juror identities were withheld “because of confidentiality.” The record does not reflect any concern regarding juror safety, intimidation or interference, nor any circumstances that would otherwise warrant the use of an anonymous jury … . Additionally, we are not persuaded by any of the reasons suggested by the People at oral argument. We thus exercise our interest of justice jurisdiction, reverse and remit for a new trial. People v Cassell, 2026 NY Slip Op 02173, Third Dept 4-9-26

Practice Point: Here the trial judge’s failure to place on the record the reasons for empaneling an anonymous jury required reversal and a new trial in the interest of justice.

April 9, 2026

Appeals, Attorneys, Criminal Law, Judges

THE TRIAL JUDGE DID NOT FOLLOW THE REQUISITE PROCEDURE FOR A BATSON INQUIRY; MATTER REMITTED TO ALLOW THE JUDGE TO RULE ON WHETHER THE PROSECUTOR’S REASON FOR EXCLUDING A JUROR WAS PRETEXTUAL; THE APPEAL WAS CONSIDERED DESPITE A FAILURE TO PRESERVE THE ERROR (THIRD DEPT).

The Third Department, remitting the matter to allow the trial judge to make a “Batson” finding, determined that the judge did not follow the required “Batson” procedure. The issue was considered despite the failure to preserve the error:

It is uncontested that defendant triggered a Batson challenge when he objected to the People’s peremptory challenge of the only two jurors who were perceived by defendant to be of the same racial group — satisfying step one … . Although the prosecutor offered a race-neutral reason for each juror at step two, County Court merged the step two and three requirements by immediately denying the objection without first allowing defense counsel to make an argument that the reasons were pretextual, thereby “squeez[ing] the process into a functional bypass of the key, final protocol [the Court of Appeals has] put in place” … . Such “practice falls short of a meaningful inquiry into the question of discrimination” … , particularly because the court’s consideration of pretext cannot be discerned from the record … .

While we are mindful of defense counsel’s failure to preserve this issue, given the magnitude of the error, we take corrective action in the interest of justice because the process here was woefully inadequate to satisfy the safeguards enshrined by Batson to every defendant (see CPL 470.15 [6] [a] …). Therefore, since the issue of pretext is a question of fact for the trial court to assess the prosecutor’s credibility against the challenged juror’s demeanor and language capabilities, which is an inquiry appellate courts are unable to address at step three, “we withhold decision and remit this case to [County] Court to enable the trial judge who presided over this matter to determine whether the race-neutral reason proffered by the People was pretextual” … . People v Duplessis, 2026 NY Slip Op 02170, Second Dept 4-9-26

Practice Point: Here the trial judge did not follow the required steps for determining a Batson challenge to the elimination of a juror by the prosecutor.

April 9, 2026

Appeals

THE APPENDIX SUBMITTED BY THE APPELLANT WAS INCOMPLETE; APPEAL DISMISSED (SECOND DEPT).

The Second Department, dismissing the appeal, determined the appendix submitted by the appellant was insufficient to allow consideration of the issues raised:

“[A]n appellant who perfects an appeal by using the appendix method must file an appendix that contains all relevant portions of the record to enable the court to render an informed decision on the merits of the appeal” … . “‘The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent, including material excerpts from transcripts of testimony[,] . . . papers in connection with a motion, and critical exhibits'” … . Further, “[e]xcerpts from the transcripts ‘must not be misleading or unintelligible by reason of incompleteness or lack of surrounding context'” … . “‘An appellate court should not be subjected to the task of untangling and mastering the facts from an inadequate and incoherent appendix'” … .

Here, the plaintiffs omitted from the appendix, among other things, material excerpts from transcripts of deposition testimony and each of the defendants’ papers in connection with the separate motions which were the subject of the order appealed from … . “These omissions inhibit the court’s ability to render an informed decision on the merits of the appeal” … . Accordingly, as the plaintiffs have failed to provide this Court with an adequate appendix, we dismiss the appeal … .Kelly-Newhouse v Chase Meadows Farm, LLC, 2026 NY Slip Op 02108, Second Dept 4-8-26

Practice Point: When an appeal is perfected by the appendix method, if the appendix does not include all of the record necessary for consideration of the issues raised in the appeal, the appeal will be dismissed.

April 8, 2026

Appeals, Criminal Law, Evidence

ALTHOUGH THE DEFENDANT WAS 33 YEARS OLD AND THE JURY OBSERVED HIM, THE PEOPLE’S FAILURE TO PROVE HE WAS OVER 18 AT THE TIME OF THE CRIMES REQUIRED REVERSAL AND DISMISSAL OF TWO COUNTS; THE ERROR WAS NOT PRESERVED; THE COURT CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions of predatory sexual assault of a child and criminal sexual act first degree, determined that, although defendant was in fact 33 years old, the People failed to prove that he was over 18 at the time of the crimes. The errors was not preserved. The appellate court exercised its interest of justice jurisdiction to consider the issue:

Here, two counts in the indictment include an age element that required the People to establish that defendant was at least 18 years old at the time of the crimes in June 2020 … . Defendant was in fact 33 years old in June 2020, and the jury naturally had the opportunity to observe his appearance during the trial in 2021, but that opportunity “does not, by itself, satisfy the People’s obligation to prove defendant’s age” … , and there was no evidence at trial bearing on his age … . We therefore modify the judgment by reversing those parts convicting defendant of predatory sexual assault against a child under count 1 of the indictment and criminal sexual act in the first degree under count 5 of the indictment and dismissing those counts of the indictment. People v Jones, 2026 NY Slip Op 01882, Fourth Dept 3-27-26

Practice Point: If being over 18 at the time of the crime is an element of the offense, the People must prove that element. Here the defendant was 33, but the failure to prove he was over 18 was reversible error. This error will be considered by an appellate court even where it has not been preserved for appeal.

March 27, 2026

Appeals, Civil Procedure, Judges

ABSENT A MOTION BY A PARTY, SUPREME COURT SHOULD NOT HAVE DISMISSED THE ACTION BASED UPON DEFECTIVE SERVICE (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s motion to vacate the order dismissing the action should have been granted. The court, sua sponte, dismissed the case because of defective service. However, a dismissal on this ground requires a motion by a party. The dissenters argued the order at issue is not appealable and would have dismissed the appeal:

… CPLR 306-b specifies that “[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” (emphasis added). In consideration of this express language, other Departments of the Appellate Division have recognized that a court cannot dismiss a complaint on its own initiative for lack of personal jurisdiction based upon the failure to effect proper service of process … . As the July 2023 order dismissed the underlying action for lack of personal jurisdiction sua sponte, the court erred in doing so absent a motion by one of the parties. On account of that error, the court abused its discretion in denying plaintiff’s instant request that it exercise its discretionary power to vacate that order in the interest of substantial justice … . Plaintiff’s motion seeking to vacate the July 2023 order dismissing the action should therefore be granted and the complaint reinstated. Briggs v Fresenius, 2026 NY Slip Op 01827, Third Dept 3-26-26

Practice Point: A judge cannot, sua sponte, dismiss an action because of defective service. A party must move to dismiss on that ground.

March 26, 2026

Appeals, Criminal Law, Evidence, Judges

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.

March 19, 2026

Appeals, Criminal Law, Evidence

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.

March 18, 2026

Appeals, Criminal Law, Judges

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.

March 5, 2026