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THE RESTITUTION ORDERED AS PART OF DEFENDANT’S SENTENCE AFTER THE SECOND TRIAL RAISED A PRESUMPTION OF VINDICTIVENESS; DEFENDANT ARGUED THE RESTITUTION WAS PUNISHMENT FOR WINNING THE APPEAL OF THE FIRST TRIAL; THE THIRD DEPARTMENT VACATED THE RESTITUTION; ALSO, THE MURDER SECOND DEGREE COUNTS WERE DISMISSED AS INCLUSORY CONCURRENT COUNTS OF MURDER FIRST DEGREE (THIRD DEPT).

The Third Department, vacating the restitution portion of the sentence, determined the presumption of vindictiveness had not been overcome. The defendant had won an appeal requiring a second trial. Defendant argued that the restitution in the amount of $139,231.87 ordered after the second trial was punishment for the successful appeal. The Third Department also dismissed the murder second degree counts a inclusory concurrent courts of murder first degree:

“[T]o insure that trial courts do not impose longer sentences to punish defendants for taking an appeal, a presumption of vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences after their retrials than were imposed after their initial convictions” … . * * *

… [T]he imposition of restitution after retrial did result in an enhanced sentence following defendant’s successful appeal, and, as a result, the presumption of vindictiveness arose … . However, the court failed to engage in any on-the-record examination of the objective reasons why an enhanced sentence must be imposed, other than finding that it was not vindictive to order defendant “to make financially whole the representatives of his victims,” facts that indisputably existed at the time of the initial sentencing … . * * *

While we observe that County Court may have not actually been seeking to punish defendant for exercising his right to appeal when it imposed restitution, it was nevertheless the court’s obligation to overcome the presumption of vindictiveness by placing the reasons for the enhanced sentence on the record, and, based upon its failure to do so, we are constrained to vacate this portion of defendant’s sentence … . People v Powell, 2025 NY Slip Op 01839, Second Dept 3-27-25

Practice Point: Here ordering restitution as part of the sentence after the second trial raised a presumption that the restitution constituted “punishment” for defendant’s winning the appeal of the first trial. The sentencing court put nothing on the record to rebut the presumption of vindictiveness, so the restitution was vacated.

Practice Point: Here the murder second degree counts were dismissed as concurrent inclusory counts of murder first.

 

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FAMILY COURT LOST SUBJECT MATTER JURISDICTION AFTER THE NEGLECT PETITION WAS DISMISSED; THEREFORE THE COURT SHOULD NOT HAVE CONTINUED THE CHILD’S PLACEMENT IN FOSTER CARE (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Gesmer, determined Family Court lost subject matter jurisdiction after the neglect petition against mother was dismissed. Therefore the child’s placement in foster should not have been continued by the court. The First Department also noted that mother’s mental-health records from the period after the filing and after the dismissal of the neglect petition were improperly admitted:

We … find that Family Court lacked subject matter jurisdiction to continue R.C.’s foster care placement for the reasons articulated in Matter of Jamie J. (Michelle E.C.) (30 NY3d 275 [2017]), in which the Court of Appeals held that “Family Court’s jurisdiction terminates upon dismissal of the original neglect or abuse petition” … .

The “court’s lack of subject matter jurisdiction is not waivable, but may be raised at any stage of the action, and the court may . . . on its own motion . . . at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action” … .

Here, once the neglect petition against the mother was dismissed, Family Court lacked subject matter jurisdiction to continue the child’s temporary removal from the mother’s care and placement in foster care … . Accordingly, it should have immediately returned the child to the mother’s care and terminated the child’s foster care placement. It erred when it determined that it could hold permanency hearings based on the pending neglect petition against the putative father, since the child was not removed from his care, but from the mother’s. … Indeed, there is no evidence in the record that the child ever resided with the putative father and no indication that he ever sought custody of the child.

Furthermore, we find that the failure of Family Court to immediately return the child to the care of the mother after the dismissal of the neglect petition against her—as well as the subsequent protracted proceedings, including the dispositional hearing, which lasted nearly a year and a half—violated her due process rights … . Matter of R.C. (D.C.–R.R.), 2025 NY Slip Op 01859, First Dept 3-27-25

Practice Point: Here Family Court lost subject matter jurisdiction after the neglect petition against mother was dismissed and did not have the authority to continue the child’s placement in foster care.

Practice Point: The protracted proceedings after the dismissal of the neglect petition, during which the child remained in foster care, violated mother’s right to due process.

 

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HERE THE FOURTH DEPARTMENT HAD ORDERED A RECONSTRUCTION HEARING BECAUSE THE ORIGINAL RECORD WAS WOEFULLY INCOMPLETE; THE MAJORITY CONCLUDED THE RECONSTRUCTION HEARING WAS PROPERLY DONE AND AFFIRMED DEFENDANT’S CONVICTION; THE DISSENT TOOK ISSUE WITH NATURE OF THE RECONSTRUCTION HEARING (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction over a dissent, determined the reconstruction hearing compelled by the incomplete original record was properly done. The dissent disagreed:

We … reserved decision … and remitted the matter to County Court “to conduct a reconstruction hearing with respect to the missing and irregular transcripts” … .

Upon remittal, the court conducted a reconstruction hearing during which it heard the testimony of the trial judge and his confidential law clerk, the trial prosecutor, defendant’s former attorneys, a court clerk, and a county clerk. The court also admitted in evidence the trial judge’s notes; the court’s voir dire challenge sheet; the trial prosecutor’s notes on the jury charge and his copy of the verdict sheet; the court clerk’s minutes, exhibit list, and witness list; the county clerk’s case summary; and various court exhibits from the trial. Based on the record of the reconstruction hearing and the original record, we now affirm.

From the dissent:

Upon remittal, the court convened a reconstruction hearing without expressly delineating the missing and irregular transcripts to be reconstructed. Instead, the court heard the testimony of witnesses offered by the People and closed the hearing without determining whether the evidence submitted was sufficient to reconstruct a record that would permit defendant to review “whether genuine appealable and reviewable [trial] issues do or do not exist” … . That was error. Although the reconstruction required by the substantial irregularities in this trial transcript was considerably broader than the discrete issues for which reconstruction is more frequently directed … , the intent of our prior decision was for the court to make a determination whether the missing and irregular transcripts were sufficiently reconstructed, not merely to assist in the marshaling of evidence from which this Court could reconstruct the trial record behind closed doors … . People v Meyers, 2025 NY Slip Op 01762, Fourth Dept 3-21-25

Practice Point: Consult this decision for the issues raised, and the procedures to be followed, when the original record is too incomplete to allow an appellate review.

 

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WHERE THERE IS A FACTUAL DISPUTE ON A MATERIAL ISSUE WHICH MUST BE RESOLVED BEFORE THE COURT CAN DECIDE A LEGAL ISSUE, THE FACTUAL DISPUTE MUST BE RESOLVED IN A HEARING BEFORE THE COURT CAN DECIDE THE LEGAL ISSUE; WHETHER THE RECORD GIVES RISE TO A FACTUAL DISPUTE ON A MATERIAL ISSUE IS A QUESTION OF LAW (CT APP).

The Court of Appeals, reversing the Appellate Division, determined a factual dispute about whether an attorney (Santamarina) validly waived personal jurisdiction on behalf of defendant Koukis required a hearing:

Supreme Court decided Mr. Koukis’s motion without a factual hearing, holding that Mr. Santamarina lacked authority to act on Mr. Koukis’s behalf and vacating his waiver of personal jurisdiction and service defenses. But Supreme Court concluded that personal jurisdiction existed over Mr. Koukis pursuant to CPLR 302 (a) (2). It therefore set the matter down for a traverse hearing to determine if service on Mr. Koukis of the summons and complaint was proper.

Before the traverse hearing occurred, the Appellate Division modified the order of Supreme Court by vacating the default judgment and granting Mr. Koukis’s motion to dismiss based upon a lack of jurisdiction. The Appellate Division held that “there was no basis to conclude that Koukis authorized Santamarina to appear and waive all jurisdictional defenses on his behalf” … . Additionally, the majority departed from Supreme Court in its analysis of CPLR 302 (a) (2), concluding that the court did not have personal jurisdiction and dismissing the complaint in its entirety … . Two Justices partially dissented on the ground that Supreme Court should have held a hearing to determine whether Mr. Santamarina had the authority to represent Mr. Koukis … . We now reverse on the basis that there is a material factual dispute as to whether Mr. Koukis authorized or ratified the waiver of personal jurisdiction

[Plaintiff] was entitled to a factual hearing to determine whether Mr. Santamarina validly appeared on Mr. Koukis’s behalf and waived personal jurisdiction. Where the record shows a “factual dispute on a material point which must be resolved before the court can decide the legal issue,” the court may not grant the motion without first holding a hearing (… see … CPLR 2218). Whether the record gives rise to such a factual dispute is a question of law … .Gibson, Dunn & Crutcher LLP v Koukis, 2025 NY Slip Op 01565, CtApp 3-18-25

Practice Point: Here there was a factual dispute on a material issue which had to be decided before the related legal question could be answered. Therefore a hearing was required to resolve the factual issue before the court addressed the legal issue. Whether a factual dispute on a material issue exists raises a question of law.

 

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DEFENDANT’S GUILTY PLEA WAS NOT VOLUNTARY BECAUSE HE WAS NOT INFORMED OF THE MANDATORY FINES FOR THE VEHICLE AND TRAFFIC LAW OFFENSES; AN EXCEPTION TO THE PRESERVATION REQUIREMENT APPLIED; AN APPEAL WAIVER DOES NOT PRECLUDE ARGUING THE PLEA WAS INVOLUNTARY (CT APP).

The Court of Appeals, reversing the Appellate Division, determined defendant’s guilty plea was not voluntary because he was not informed of the mandatory fines for the Vehicle and Traffic Law offenses. Although the error was not preserved, the “no actual or practical ability to object” preservation exception was invoked: An appeal waiver does not preclude the defendant from arguing the plea was involuntary:

An exception to the preservation requirement exists where, as here, a defendant had “no actual or practical ability to object” prior to the imposition of the fines by the sentencing court … . Further, a valid appeal waiver does not preclude a defendant from challenging a plea as involuntary, where the court fails to advise a defendant of a component of their sentence before it is imposed … .

Supreme Court erred in failing to inform defendant at the time of his plea that the sentences for two of the offenses to which he was pleading guilty included mandatory fines (see Vehicle and Traffic Law § 511 [3] [b]; Vehicle and Traffic Law § 1193 [1] [a]) The failure to “ensure that . . . defendant, before pleading guilty, ha[d] a full understanding of what the plea connotes and its consequences” … , requires vacatur of the plea. People v Padilla-Zuniga, 2025 NY Slip Op 01563, CtApp 3-18-25

Practice Point: The failure to inform the defendant of mandatory fines renders the guilty plea involuntary.

Practice Point: Here the “no actual or practical ability to object” exception to the preservation requirement applied.

Practice Point: An appeal waiver does not preclude the argument that the plea was involuntarily entered.

 

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THE DEFENDANT’S MAXIMUM SENTENCE WAS 20 YEARS BUT THE JUDGE REPEATEDLY TOLD DEFENDANT HE WAS FACING 45 YEARS; THE MAJORITY DETERMINED THE GUILTY PLEA WAS NOT VOLUNTARILY ENTERED; THE DISSENT ARGUED THE ISSUE WAS NOT PRESERVED (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a two-justice dissent, determined defendant’s guilty plea was not entered voluntarily, knowingly and intelligently because the judge repeatedly told the defendant he was facing 45 years in prison when his sentence was capped at 20. The dissent argued the error was not preserved:

The issue on appeal is whether defendant Marquese Scott’s guilty plea was knowing, voluntary, and intelligent. Supreme Court made an egregious error during the plea proceedings, repeatedly asserting that defendant faced up to 45 years’ incarceration if found guilty after trial, when his maximum exposure was statutorily capped at 20 years. As we have long recognized, inaccurate information regarding a sentence is a significant factor in determining whether a plea was voluntary. Given defendant’s young age, his inexperience facing serious charges with the risk of consecutive sentencing, and the vast disparity between the plea offer of 6 to 8 years and the court’s erroneous assertion that he faced 25 years more than the law allowed, we hold that defendant’s guilty plea was not the result of a free and informed choice. Accordingly, defendant’s plea cannot stand. * * *

From the dissent:

With only narrow exceptions, we have unequivocally required a defendant to preserve a challenge to the voluntariness of their plea by making “a motion to withdraw the plea under CPL 220.60 (3) or a motion to vacate the judgment of conviction under CPL 440.10” … . People v Scott, 2025 NY Slip Op 01562, CtApp 3-18-25

Practice Point: A guilty plea entered after the defendant is erroneously told he is facing 45 years in prison when the sentence is statutorily capped at 20 is not voluntary.​

Practice Point: Here the dissent argued the majority should not have carved out a new exception to the preservation requirement to consider the merits of this case.

 

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ASSAULT THIRD IS AN INCLUSORY CONCURRENT COUNT OF ASSAULT SECOND; THE ASSAULT THIRD CONVICTION REVERSED AND THE COUNT DISMISSED; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT). ​

The Fourth Department determined the assault third conviction must be reverses as an inclusory concurrent count of the assault second degree conviction. The issue need not be preserved for appeal:

… [A]ssault in the third degree is an inclusory concurrent count of assault in the second degree … . Thus, that part of the judgment convicting defendant of assault in the third degree must be reversed and count 2 of the indictment dismissed … , and we therefore modify the judgment accordingly. Contrary to the People’s contention, preservation of this issue is not required … . People v Niles, 2025 NY Slip Op 01502, Fourth Dept 3-14-25

Practice Point: Assault third is an inclusory concurrent count of assault second. A defendant cannot stand convicted of both. The issue can be raised for the first time on appeal.

 

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THE ONLY EVIDENCE OF DEFENDANT’S PARTICIPATION IN THE SHOOTING WAS DNA ON A HANDGUN; THE EVIDENCE OF MURDER AND POSSESSION OF A WEAPON WAS LEGALLY INSUFFICIENT; THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; INDICTMENT DISMISSED (FIRST DEPT).

The First Department, vacating defendant’s murder conviction and dismissing the indictment, determined the circumstantial evidence was legally insufficient and the verdict was against the weight of the evidence. The only evidence against the defendant was DNA on a handgun. No evidence placed defendant at the scene of the shooting or in the vehicle apparently used by persons (Jenkins and Brown) involved in the shooting:

… [T]here no evidence from which to infer that defendant had the intent to commit, or aid Jenkins or Brown in furtherance of, the shooting. The People’s case depends almost entirely upon the DNA evidence, from which the People infer that defendant racked the Glock used to kill Ms. Jacobs. The DNA evidence, however, is highly equivocal and does not reasonably permit such an inference. … Critically, the OCME [Office of the Chief Medical Examiner] criminalist Hardy testified that it was impossible to determine when each contributor left DNA on the gun; how defendant’s DNA was transferred to the gun; or, more importantly, whether defendant even touched the gun. Without additional evidence that defendant possessed the gun during or took any actions to aid Jenkins or Brown in the shooting, any conclusion that defendant possessed the gun or committed or aided in the shooting is based entirely on conjecture.

There is no such corroborating evidence. This case contains no physical, video, or testimonial proof regarding any act defendant took in furtherance of possessing the gun or shooting Ms. Jacobs. Even assuming arguendo defendant’s presence with Jenkins and Brown nearly two hours before the shooting, such does not lead to a permissible inference that he shot Ms. Jacobs or possessed the gun in furtherance of the crime that evening. * * *

Further, there is no legally sufficient evidence proving that defendant was present at the crime scene. Again, assuming that defendant was with Jenkins and Brown hours prior to the shooting does not permit any reasonable inference that he was with them at the crime scene. There is no evidence that defendant ever entered the Nissan. Nor was there evidence that he was present in the Nissan at the time of the chase. While police recovered from the Nissan fingerprints of Jenkins, Brown, and that of a third unidentified back seat passenger, they did not recover defendant’s prints. Additionally, the liquor bottles with which the People attempt to tie defendant to the car do not match those defendant purchased at the liquor store, and the bottles were never tested for defendant’s fingerprints or DNA. People v Coke, 2025 NY Slip Op 01297, First Dept 3-6-25

Practice Point: Consult this opinion for discussions of convictions based entirely on circumstantial evidence. the criteria for finding evidence legally insufficient. and the criteria for finding a verdict is against the weight of the evidence.

 

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THE APPEAL WAIVER WAS INVALID, CRITERIA EXPLAINED; THERE ARE UNRESOLVED QUESTIONS (RAISED BY A DEFENSE INVESTIGATION SUBMITTED WITH THE MOTION TO SUPPRESS) ABOUT WHETHER THE DESCRIPTON OF THE SEARCHED PREMISES IN THE WARRANT WAS ACCURATE, REQUIRING A HEARING; MATTER REMANDED (FIRST DEPT

The First Department, in a full-fledged opinion by Justice Higgitt, remanding the matter for a suppression hearing, and finding the appeal waiver invalid, determined there were questions about whether the search warrant described the premises to be searched with sufficient particularity. The warrant indicated there was only one apartment, with an unmarked tan door. The defendant’s investigator submitted evidence demonstrating there were two apartments, neither with a tan door, and the door to the searched apartment was marked with a number one, while the other apartment door was unmarked:

The plea colloquy contained several defects. It did not make clear, expressly or tacitly, that the right to appeal was separate and distinct from the Boykin rights defendant was automatically forfeiting with the plea; the colloquy suggested that the appeal waiver was absolute, offering no clue that some core appellate claims would survive; and, relatedly, the colloquy wrongly indicated that no appeal was permissible on the fundamental issues of whether the plea was entered into knowingly and voluntarily, and whether the sentence was legal.

The written waiver cannot save the oral appeal waiver. The plea court did not confirm that defendant had read the written waiver; the court did not confirm that defendant had discussed the written waiver with counsel; and the court did not confirm that defendant understood the written waiver … . * * *

… [D]efendant’s submissions in support of his omnibus motion call into question whether the search warrant contains a misdescription of the premises to be searched, and, if there is a misdescription, whether it renders the warrant invalid. Specifically, defendant’s omnibus motion submissions raise a question of fact as to whether, based on what the police officer knew or should have known about the premises when the search warrant was sought, the warrant’s description of the target premises was accurate … . [D]efendant here submitted evidence (in particular, the affirmation of the investigator who visited the premises and the photographs of 955 Bruckner Boulevard taken by the investigator) about the “actual conditions of the premises” in support of his omnibus motion … . Additionally, assuming there was a misdescription of the premises to be searched, a question of fact exists as to whether there was no reasonable possibility that the wrong premises would have been searched … .

We cannot resolve the issues raised by defendant’s omnibus motion submissions without a hearing (see CPL 710.60[4]; see also CPL 710.60[2] …). This is not a situation where it is plain from the existing record that there was no reasonable possibility that the wrong premises would be searched regardless of any misdescription … . People v Trulove, 2025 NY Slip Op 01178, First Dept 2-27-25

Practice Point: Consult this opinion for a detailed explanation of the criteria for a valid waiver of appeal.

Practice Point: Here the defense investigator submitted evidence which raised a question whether the search warrant accurately described the premises to be searched. The matter was remanded for a hearing.

 

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DEFENDANT WAS 16 AT THE TIME OF THE CRIME AND WAS CONVICTED OF MANSLAUGHTER IN 2012; THE CONVICTION WAS AFFIRMED IN 2014; PURSUANT TO A MOTION FOR A WRIT OF CORAM NOBIS BROUGHT IN 2022 IT HAS BEEN DETERMINED THAT SUPREME COURT ERRED IN FAILING TO CONSIDER WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS AND THE MATTER IS NOW REMITTED TO SUPREME COURT FOR THAT PURPOSE (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence, determined the matter should be remitted for a ruling on whether defendant defendant should be afforded youthful offender status. Defendant, who was 16 at the time of the crime was convicted of manslaughter in 2012. His conviction was affirmed in 2014. In 2022 defendant moved for a writ of coram nobis to permit him to argue that Supreme Court erred by failing to determine whether he should be afforded youthful offender status:

The decision to grant or deny youthful offender status rests within the sound exercise of the sentencing court’s discretion to determine “if in the opinion of the court the interest of justice would be served by relieving the eligible youth from the onus of a criminal record” … . “Among the factors to be considered are the gravity of the crime and manner in which it was committed, mitigating circumstances, the defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, the defendant’s reputation, the level of cooperation with authorities, the defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” … . Defendant argues, the People concede, and we agree that defendant is an eligible youth; thus, Supreme Court erred in failing to determine defendant’s eligibility for youthful offender status in the first instance … .

Although this Court has the authority to determine whether defendant is entitled to youthful offender status … , we decline the People’s invitation to do so here in the complete absence of any consideration by the sentencing court as to whether defendant should be adjudicated a youthful offender … . Accordingly, we remit the matter to Supreme Court for the explicit purpose of providing an opportunity to the parties to fully advocate for and against whether youthful offender status for defendant is warranted … . People v Vanderhorst, 2025 NY Slip Op 01012, Third Dept 2-20-25

Practice Point: Here Supreme Court’s erroneous failure to consider whether defendant should be afforded youthful offender status was first raised in a motion for a writ of coram nobis after defendant’s conviction had been affirmed on appeal.

 

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