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ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT’S CONVICTIONS WERE REVERSED IN THE INTEREST OF JUSTICE; THE CREDIBILITY OF ONE OF THE VICTIMS WAS IMPROPERLY BOLSTERED IN OPINION TESTIMONY BY A POLICE OFFICER AND A PSYCHOLOGIST ASSERTING THAT THE VICTIM WAS BELIEVABLE AND RELIABLE; A PRIOR INCONSISTENT STATEMENT BY ONE OF THE VICTIMS, IN WHICH THE VICTIM DENIED DEFENDANT HAD EVER MOLESTED THE VICTIM, SHOULD HAVE BEEN ADMITTED (THIRD DEPT).

The Third Department, in the interest of justice, reversed the “predatory sexual assault against a child” convictions which involved two victims, and ordered a severance if a new trial is held. The Third Department determined the credibility of one of the victims was improperly bolstered by the testimony by a police officer and a psychologist that they found the victim’s version of events believable and reliable. In addition, the Third Department held that a prior inconsistent statement by one of the victims, denying that defendant ever molested the victim, should have been admitted in evidence:

… [W]e find merit in defendant’s contention that he was deprived of a fair trial based upon the testimonies of Breslin [a police officer] and Spagli [a psychologist], who each offered their opinion as to victim 2’s credibility. Accordingly, notwithstanding defendant’s failure to properly preserve his claim, we exercise our discretion and reverse in the interest of justice (see CPL 470.15 [6] [a] …). “It is always within the sole province of the jury to decide whether the testimony of any witness is truthful or not” … . As such, “to bolster the testimony of another witness . . . by explaining that his [or her] version of the events is more believable than the defendant’s, the . . . testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned” … . Here, Breslin testified that he “felt . . . [victim 2] was telling the truth.” Spagli, in turn, agreed that the goal of reaching the truth “was done in this case” and further testified that she “felt [victim 2] was reliable throughout the course of the investigation.” Supreme Court did not provide a curative instruction.

We are similarly persuaded by defendant’s claim that he was improperly denied the opportunity to impeach victim 2 about an alleged prior inconsistent statement given in an unrelated Family Court matter, in which victim 2 reportedly denied ever having been molested by defendant. * * * The impeachment testimony sought here … concerned the ultimate issue before the jury. Accordingly, we conclude that it was error to preclude defendant from exercizing his right to confront victim 2 about their prior statement; the court could have crafted limitations to prevent the disclosure of unduly prejudicial information upon such questioning … . People v Swartz, 2025 NY Slip Op 01015, Third Dept 2-20-25

Practice Point: If trial errors are severe enough, as they were here, an appellate court has the power to overlook the failure to preserve the errors and reverse in the interest of justice.

 

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IF THE TRIAL EVIDENCE VARIES FROM THE THEORY OF THE INDICTMENT, THE RELATED CONVICTIONS WILL BE VACATED (FIRST DEPT).

The First Department, vacating defendant’s convictions on some counts, determined the trial evidence varied from the theory of the indictment. The facts were not explained:

This Court agrees with the parties that defendant’s conviction under count 2 of the indictment charging grand larceny in the fourth degree, as well as criminal acts 1 and 6 alleged in count 1 of the indictment charging enterprise corruption, must be reversed because the trial evidence, which included evidence suggesting that defendant threatened physical damage to construction sites through vandalism, varied from the theory of the indictment (see People v Grega, 72 NY2d 489, 496-498 [1988]). People v Correll, 2025 NY Slip Op 00796, First Dept 2-11-25

Practice Point: If the trial evidence does not comport with the theory of the indictment, the related counts will be vacated.​

 

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DESIGNATING DEFENDANT A SEXUALLY VIOLENT OFFENDER BASED SOLELY UPON THE FACT HE WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN PENNSYLVANIA VIOLATED DUE PROCESS; HOWEVER THE MATTER WAS REMITTED TO DETERMINE WHETHER ANY OF THE PENNSYLVANIA FELONIES WOULD HAVE CONSTITUTED A SEXUALLY VIOLENT OFFENSE IN NEW YORK, A QUESTION NOT RAISED BEFORE COUNTY COURT (FOURTH DEPT). ​

The Fourth Department reversed defendant’s SORA designation as a sexually violent offender based upon Pennsylvania convictions as a violation of due process, but remitted the matter to Count Court for consideration of the issue under another provision of the Correction Law:

… [W]e conclude, based on the reasoning set forth by the plurality in People v Malloy (228 AD3d 1284, 1287-1291 [4th Dept 2024]), that there is no rational basis for designating defendant a sexually violent offender solely on the ground of his conviction of the Pennsylvania felony sex offenses requiring him to register as a sex offender in that jurisdiction … . Defendant has therefore met his burden of showing that the imposition of the sexually violent offender designation under the second disjunctive clause of Correction Law § 168-a (3) (b), as applied to him, violates his constitutional right to substantive due process. Consequently, we reverse the order insofar as appealed from and vacate that designation.

However, we note that the issue whether the essential elements of any of the Pennsylvania felonies were the statutory equivalent of a sexually violent offense in New York under the essential elements test set out in the first disjunctive clause of Correction Law § 168-a (3) (b) was never raised before County Court. We decline to consider that alternative basis for affirmance, sua sponte, for the first time on appeal … . We therefore remit to County Court to consider whether any of the Pennsylvania felonies includes all of the essential elements of a sexually violent offense set forth in Correction Law § 168-a (3) (a) … . People v Boldorff, 2025 NY Slip Op 00765, Fourth Dept 2-7-25

Practice Point: A sexually-violent-offender designation based solely upon the fact defendant was required to register as a sex offender in Pennsylvania was deemed unconstitutional here. But the matter was remitted for a determination whether any of the Pennsylvania felonies would have constituted a sexually violent offense in New York.​

 

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ALTHOUGH FATHER FAILED TO APPEAR IN THE CUSTODY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A HEARING AND MADE FINDINGS OF FACT; CUSTODY ORDER VACATED AND MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s motion to vacate the custody order should have been granted. Despite father’s failure to appear in this custody proceeding, Family Court should have held a hearing and made findings of fact in support of awarding custody to mother:

“Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court, the law favors resolution on the merits in child custody proceedings” … . In addition, the court’s authority to proceed by default “in no way diminishes the court’s primary responsibility to ensure that an award of custody is predicated on the child’s best interests, upon consideration of the totality of the circumstances, after a full and comprehensive hearing and a careful analysis of all relevant factors” … . “A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … .

Here, the Family Court made a custody determination without a hearing and without making any specific findings of fact regarding the best interests of the child. Matter of Riera v Ayabaca, 2025 NY Slip Op 00661, Second Dept 2-5-25

Practice Point: Although Family Court can proceed by default in a custody matter, a hearing and findings of fact are necessary.

 

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DURING SUMMATION THE PROSECUTOR REPEATEDLY ACCUSED DEFENDANT OF LYING, VOUCHED FOR THE CREDIBILITY OF THE COMPLAINANT AND MISSTATED CRITICAL EVIDENCE; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing defendant’s convictions and ordering a new trial, determined the attempted murder and burglary convictions were against the weight of the evidence and prosecutorial misconduct deprived defendant of a fair trial:

… [D]uring summation, the prosecutor, inter alia, repeatedly accused the defendant of lying, improperly vouched for the credibility of the complainant, and misstated the critical evidence to support the charge of attempted murder in the second degree. Indeed, the prosecutor repeatedly accused the defendant of lying on the witness stand by stating, among other things, that the defendant was “caught in a lie” and was being “less than truthful,” and that “[w]hen she thinks it is going to benefit her, she is quick to tell you a lie” … . The prosecutor also improperly stated that to believe the defendant’s version of the events, the jury would have to believe “that [the complainant] is lying about everything she told you, you have to believe she’s a complete liar,” that the police officers “are lying too,” and that “[e]veryone is out to get this defendant” … . Additionally, the prosecutor improperly vouched for the complainant’s credibility by repeatedly telling the jury that the complainant was, inter alia, “honest” and “telling the truth,” and that her testimony “was plausible and true” … . Further, the prosecutor misstated the critical evidence as to a doctor’s testimony regarding the depth of the stab wound to puncture the complainant’s chest cavity by stating that “at a minimum it would need to be a[n] inch or two to puncture someone’s chest cavity” … . Rather, the doctor estimated that the stab wound would have to be “about an inch” deep. As this evidence was critical to support the charge of attempted murder in the second degree, the prosecutor’s remarks were improper. People v Gallardo, 2025 NY Slip Op 00460, Second Dept 1-29-25

Practice Point: Here the prosecutor, in summation, accused defendant of lying, vouched for the credibility of the complainant, and misstated critical evidence. That was enough to warrant a new trial.

 

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THE WARRANTLESS SEARCH PROBATION CONDITION WAS NOT REASONABLY RELATED TO THE UNDERLYING OFFENSES; THE APPEAL WAIVER WAS INVALID; EVEN IF THE WAIVER WERE VALID THE IMPROPER PROBATION CONDITION COULD BE CONSIDERED ON APPEAL (FIRST DEPT).

The First Department determined defendant’s waiver of appeal was invalid and the probation condition allowing warrantless searches of defendant’s home, person and vehicle was not reasonable related to the underlying offenses. The court noted that defendant could appeal the probation condition even if the appeal waiver were valid:

We find defendant’s appeal waiver invalid and unenforceable because the court did not adequately explain the nature of the appellate rights defendant was waiving, that the right to appeal was separate and distinct from the rights automatically forfeited upon a guilty plea or the limited claims that survive an appeal waiver … . The written waiver of appeal defendant signed “[was] not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … .

Although defendant’s waiver of the right to appeal was invalid, defendant’s sentence was not excessive. However, the special probation condition permitting warrantless searches of defendant’s home, person and vehicle was not reasonably related to defendant’s rehabilitation since the crime of which defendant was convicted did not involve weapons or drugs … . Contrary to the People’s contention, a defendant’s challenge to the condition of probation requiring consent to searches of their person, vehicle and place of abode by a probation officer for drugs, drug paraphernalia, weapons and contraband would have survived the appeal waiver had it not been invalid … . People v Amparo, 2025 NY Slip Op 00389, First Dept 1-23-25

Practice Point: A written appeal waiver does not cure deficiencies in the judge’s explanation of the forfeited rights.

Practice Point: A condition of probation which does not reasonably relate to the underlying offenses will be struck on appeal.

Practice Point: An improper probation condition can be appealed even if the error has not been preserved by objection.

 

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DEFENDANT MADE A DISCOVERY DEMAND FOR “LINE OF DUTY” DOCUMENTS RELEVANT TO THE DEFENSE; THE PEOPLE DID NOT ADDRESS THE DEMAND; ON APPEAL THE PEOPLE ARGUED FOR THE FIRST TIME THAT THERE WERE NO SUCH DOCUMENTS; BY FAILING TO ADDRESS THE DEMAND IN THE MOTION COURT, THE PEOPLE WERE DEEMED TO HAVE CONCEDED THE EXISTENCE OF THE DOCUMENTS; THE CERTIFICATE OF COMPLIANCE WAS THEREFORE ILLUSORY; INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing the conviction and dismissing the indictment, determined the certificate of compliance (COC) with the People’s discovery obligations was illusory and defendant’s motion to dismiss on speedy trial grounds should have been granted:

Officer Soto testified before the grand jury that the defendant was sitting in a parked car when the plainclothes officers approached him, that Officer Soto did not identify himself as a police officer, that he could not recall whether Officer Cruz identified himself as a police officer, that a struggle ensued over some suspected marijuana in the defendant’s hand, and that the defendant drove away, causing injury to each officer. The indicted charges included aggravated assault upon a police officer and assault in the second degree, alleging, among other things, that the defendant caused serious physical injury to Officer Soto and physical injury to Officer Cruz. * * *

The defendant … identified the failure to disclose any “line of duty” paperwork, despite the defendant’s request for the same, and the facts that both officers were out “line of duty” for a period of time due to their injuries and Officer Soto ultimately retired due to his injuries. The defendant asserted that the “line of duty” paperwork would include documents relating to the independent medical examinations by the New York City Police Department District Surgeon used to certify that the officers were, in fact, injured and unable to return to full duty, as well as written statements by the officers regarding the manner in which their injuries occurred. * * *

On appeal, the People assert that there is no indication that any “line of duty” paperwork exists. In opposition to the defendant’s motion, however, the People did not refute the defendant’s assertion that the paperwork existed. “Normally what is not disputed is deemed to be conceded” … . Moreover, as the People bear the burden of establishing that they did, in fact, exercise due diligence and make reasonable inquiries to ascertain the existence of material and information subject to discovery prior to filing the COC, it was incumbent on the People to address the defendant’s assertion regarding the “line of duty” paperwork in opposing his motion. People v Serrano, 2025 NY Slip Op 00338, Second Dept 1-22-25

Practice Point: If the People ignore a defendant’s discovery demand for relevant documents, they will be deemed to have acknowledged that the documents exist rendering the COC illusory.

 

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THE TRIAL JUDGE COMPLETELY BYPASSED THE BATSON PROCEDURE WHEN DEFENSE COUNSEL OBJECTED TO THE PEOPLE’S PEREMPTORY CHALLENGES TO FOUR JURORS; ALTHOUGH THE JURORS HAD BEEN EXCUSED, THE BATSON OBJECTION WAS TIMELY; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; CONVICTION HELD IN ABEYANCE AND MATTER REMITTED; TWO JUSTICE DISSENT (FIRST DEPT).

The First Department, holding the judgment of conviction in abeyance and remitting the matter, in a full-fledged opinion by Justice Pitt-Burke, over a two-justice dissent, determined (1) the appeal raising an unpreserved objection to the trial judge’s handling of a Batson challenge could be considered “in the interest of justice,” and (2) the trial judge erroneously bypassed the Batson procedure for addressing whether racial discrimination was the basis for four of the prosecution’s peremptory challenges. Defense raised the Batson challenge after the four jurors had been excused. The trial judge argued the challenge was untimely and the only remedy was a mistrial. Defense counsel argued, and the prosecution conceded, the challenge was timely, but defense counsel declined to request a mistrial. The First Department noted that remedies other than a mistrial were available—recalling the excused jurors, limiting the prosecution’s peremptory challenges, or granting the defense additional peremptory challenges, for example:

Even if we were to agree that defendant’s claim is unpreserved, we find that the trial court’s errors here were critical, and not merely a case of putting the proverbial cart before the horse … . The trial court’s actions, whether intentional or not, sidestepped the entire Batson protocol.

This Court’s recent precedent has been to exercise its interest of justice jurisdiction to correct unpreserved Batson errors where a trial court has substantially deviated from the Batson protocol. * * *

Crucially, here we are not faced with a circumstance in which the trial court erroneously concluded that defendant did not meet his prima facie burden at step one … . In fact, as noted above, the trial court took notice of the preemptory challenges implemented by the prosecution.

This is also not a circumstance in which the court deviated from the Batson protocol by improperly combining steps two and three … . Rather, we are faced with a circumstance where the trial court failed to provide any inquiry into the question of discrimination by circumventing all three steps of the Batson protocol. People v Luke, 2025 NY Slip Op 00297, First Dept 1-21-25

Practice Point: The failure to adhere to the Batson three-step procedure for addressing discrimination in jury selection can be considered by an appellate court “in the interest of justice” despite the failure to preserve the error.

Practice Point: A Batson challenge raised after the jurors had been excused, but before jury selection is complete, is timely.

Practice Point: Remedies for a Batson challenge first raised after the jurors have been excused include recalling the excused jurors, limiting the prosecution’s peremptory challenges, and granting the defense additional peremptory challenges.

 

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AT SENTENCING THE PROSECUTOR REFERENCED EXCULPATORY STATEMENTS ATTRIBUTED TO DEFENDANT IN THE PRESENTENCE REPORT BUT, WHEN GIVEN THE OPPORTUNITY, NEITHER DEFENDANT NOR DEFENSE COUNSEL ADDRESSED THE ISSUE; NOTWITHSTANDING THE SILENCE OF THE DEFENSE THE JUDGE SHOULD HAVE INQUIRED INTO WHETHER THE GUILTY PLEA WAS KNOWING AND VOLUNTARY; THERE WAS NO NEED TO PRESERVE THE ERROR FOR APPEAL (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, in a full-fledged opinion by Judge Singh, determined the prosecutor’s mention of defendant’s (Dupree’s) exculpatory statements in the presentence report (PSR) required the judge to conduct an inquiry to ensure the guilty plea was knowing and voluntary, despite the defendant’s and defense counsel’s failure to address the statements at sentencing. Defendant and defense counsel were asked by the judge whether they wished to address the court and both said “no.” The issue need not be preserved and was properly raised on appeal:

Before sentencing, Dupree was interviewed by the Department of Probation. He made the following statement: “I admitted to shooting someone in the leg and back and the bullet went through his chest. I was fighting with him (stranger) and was defending myself. I was drinking at the club and someone slipped something in my drink and I was leaving the club to get home. He saw me staggering and wanted to rob me.” This statement was included in the presentence report (PSR).

At sentencing, Supreme Court asked whether the parties had any factual difficulties with the PSR. The prosecution replied, “I do have some factual difficulty relating to the defendant’s statement which I do not believe there was a valid self-defense claim. In fact, it is not a valid self-defense claim. . . . So I do take issue with that part of his statement as well as his claimed intoxication.” The court then asked, “and anything for the defense?” to which defense counsel replied, “no.” The court later asked whether the defense would like to be heard as to the promised sentence and, finally, asked Dupree himself if there was anything he would like to add. Neither Dupree nor his attorney addressed the statement in the PSR or the prosecution’s comment made in open court. * * *

The prosecution … argues that if Supreme Court had to inquire further, it did so by asking if defense counsel had anything to say. Yet the Court of Appeals has never held that a court may satisfy its obligation merely by allowing the defense to speak. Neither have we. Rather, the law is clear that “the trial court has a duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary” … . People v Dupree, 2025 NY Slip Op 00199, First Dept 1-14-25

Practice Point: Here the prosecutor, at sentencing, expressed disagreement with exculpatory statements attributed to defendant in the presentence report but neither defendant nor defense counsel chose to address the issue when given the opportunity by the judge. The prosecutor’s reference to the statements triggered the need for an inquiry by the judge into whether the plea was knowing and voluntary, notwithstanding the silence of the defense. There was no need to preserve the issue for appeal.

 

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THE STANDARD FOR AN INTERMEDIATE APPELLATE COURT’S REVIEW OF A SENTENCE CLARIFIED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a three-judge dissenting opinion, remitted the matter to the Appellate Division for a determination whether a sentence reduction is warranted using the correct standard. The defendant need not demonstrate extraordinary circumstances or an abuse of discretion by the sentencing court to warrant a review of the sentence by the intermediate appellate court:

The intermediate appellate courts are empowered to reduce a sentence that, though legal, is “unduly harsh or severe” (CPL 470.15 [6] [b]). The decisions whether a sentence warrants reduction under that standard, and the extent to which the sentence should be reduced, are committed to the discretion of the intermediate appellate court, which has “broad, plenary power” to reduce the sentence “without deference to the sentencing court” … . A defendant need not demonstrate extraordinary circumstances or abuse of discretion by the sentencing court in order to obtain a sentence reduction … . People v Brisman, 2025 NY Slip Op 00123, CtApp 1-9-25

Practice Point: The correct standard for review of a sentence in an intermediate appellate court is whether the sentence is “unduly harsh or severe.” The decision to reduce a sentence is committed to the discretion of the intermediate court without deference to the sentencing court. The defendant need not show extraordinary circumstances or an abuse of discretion by the sentencing court.

 

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