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THE DEFENSE SPECIFICALLY CHALLENGED THE RELIABILITY OF THE IDENTIFICATION OF THE DEFENDANT WHICH WAS RELAYED TO THE POLICE BY A CIVILIAN PROPERTY OWNER; THE PEOPLE FAILED TO ESTABLISH THE IDENTIFICATION WAS BASED UPON THE PROPERTY OWNER’S PERSONAL KNOWLEDGE, AS OPPOSED TO SPECULATION; SUPPRESSION GRANTED AND INDICTMENT DISMISSED (FOURTH DEPT). ​

The Fourth Department determined the People did not establish the legality of the defendant’s arrest, granted suppression and dismissed the indictment. The defendant specifically challenged the reliability of the identification of the defendant by a civilian property owner. The People failed to demonstrate the civilian’s identification was based upon personal knowledge as opposed to speculation:

The first officer testified that the civilian property owner had identified defendant in the video as the shooter and that she had reported having interacted with him more than 100 times.

We conclude that the civilian’s basis of knowledge was not established at the hearing. “The ‘basis-of-knowledge’ prong of the test may be satisfied upon a showing that the information furnished is so detailed as to make it clear that it must have been based upon personal knowledge” … . “The basis of knowledge component . . . requires that the information provided by the informant be corroborated orthrough details sufficient in number and suggestive of, or directly related to, the criminal activity informed about” … . Although the first officer testified that the civilian property owner had previously had more than 100 interactions with defendant, the record reflects that the level of detail needed to enable the court to determine whether her identification of defendant was “more than mere speculation” is lacking … . Notably, the People never offered the supporting deposition or the video of the underlying incident at the suppression hearing, and the hearing testimony failed to provide the requisite evidence of the civilian’s “own description of underlying circumstances personally observed” … . Although police observations can provide the corroborating details required to allow a court to properly infer a basis of knowledge, no such details were offered at the hearing … . As an example, the first officer testified that he had observed defendant “half a dozen times or so” prior to defendant’s arrest, but that he could not identify defendant in the video “because the video was grainy.” As another example, the court asked the first officer, “Did [the third officer] relay to you that he had had any prior involvement with [defendant]?,” to which the first officer responded, “I did not ask him.” As a result of the lack of detail, the court was relegated to reliance upon the first officer’s conclusory statement—provided to him by the civilian property owner—that defendant was the shooter in the underlying incident—”in order to determine the reliability of the information claimed to have established probable cause” … . People v Asbury, 2026 NY Slip Op 04617, Fourth Dept 7-24-26

Practice Point: Where the police rely on information provided to them by other officers, a computer database, civilians, etc,, for probable cause, if the defense specifically challenges the reliability of the source of the information the People must demonstrate its reliability at the suppression hearing. Here the police relied on an identification of the defendant by a civilian property owner who was shown a video. The basis of the property owner’s knowledge was not demonstrated at the suppression hearing and the indictment was dismissed on appeal.

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THE POLICE HAD PROBABLE CAUSE TO ARREST THE DEFENDANT, WITHOUT A WARRANT, THREE DAYS AFTER THE SHOOTING, BASED UPON THEIR INVESTIGATION WHICH INCLUDED VIEWING VIDEO SURVEILLANCE TAPES; AN ARREST IN A PUBLIC HALLWAY OF AN APARTMENT BUILDING DOES NOT VIOLATE “PAYTON;” TWO DISSENTERS WOULD HAVE AFFIRMED COUNTY COURT’S RULING THAT THE POLICE DID NOT HAVE PROBABLE CAUSE (FOURTH DEPT).

The Fourth Department, reversing County Court’s suppression of a handgun, over a two-justice dissent, determined the police had probable cause to arrest the defendant without a warrant based upon video evidence showing the defendant entering the victim’s apartment with the victim, showing the defendant leaving the apartment and demonstrating no one else entered the apartment during the relevant period of time (when the victim was shot).. County Court’s ruling that the arrest in the common hallway of an apartment building was a Payton violation was rejected because the defendant had no expectation of privacy there:

The police “may arrest a person without a warrant when [they] ha[ve] probable cause to believe that such person has committed a crime” … . “Probable cause ‘does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been . . . committed’ by the person arrested” … . “When determining whether the police had probable cause to arrest, the inquiry is not as to [the person’s] guilt but as to the sufficiency for arrest purposes of the grounds for the arresting officer’s belief that [the person] was guilty” … . “[T]he basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator” … . ” ‘[T]he legal conclusion [as to whether probable cause existed] is to be made after considering all of the facts and circumstances together’ ” … . “A synoptic evaluation is essential because ‘[v]iewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found’ ” … .

… [O]n January 24, 2024, the tenant who actually rented the victim’s apartment in Jamestown found the victim deceased in the apartment and then reported the discovery to a neighbor, who then accompanied the tenant back to the apartment and called 911 to report the discovery of the victim’s body. The police thereafter discovered that the victim had sustained a fatal gunshot wound to the back of the head. As of that day and into the next, the murder weapon had not been located. During their investigation into the homicide, the police obtained security footage that depicted the hallway outside of the victim’s apartment. The security footage showed the victim and another male entering the victim’s apartment on January 22, 2024, but only the yet-to-be-identified male left the victim’s apartment later that same day. The investigative section commander with the investigating police department testified that, after obtaining a still photograph from the security footage and conducting further investigation, the police determined that defendant was the other male shown entering the apartment with the victim on January 22, 2024. Indeed, another officer recognized the other male—defendant—as the same person with whom he had a brief street encounter on January 22, 2024 in an alleyway on the backside of the victim’s apartment complex, i.e., defendant’s presence at the victim’s apartment complex was independently confirmed by a law enforcement source. Notably, during the street encounter that day, defendant partially misrepresented his name by giving his middle name as his surname. The police thus developed knowledge that defendant was the other male depicted leaving the victim’s apartment that same day. Based upon the police department’s review of the relevant duration of the security footage, however, no one else, including the victim, ever exited or entered the apartment from January 22, 2024 until January 24, 2024, i.e., the day that the victim’s body was discovered and the discovery was reported to the police. People v Kadenhead, 2026 NY Slip Op 04680, Fourth Dept 7-24-26

Practice Point: Here the Fourth Department determined the police had probable cause to arrest the defendant in the hallway of his apartment building, without a warrant, three days after the shooting.​

 

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DEFENDANT SPECIFICALLY CHALLENGED THE ACCURACY OF THE DMV DATABASE WHICH PURPORTEDLY INDICATED DEFENDANT’S DRIVER’S LICENSE HAD BEEN SUSPENDED (THE BASIS FOR THE TRAFFIC STOP): THE PEOPLE THEREFORE WERE REQUIRED TO DEMONSTRATE THE RELIABILITY OF THE DMV DATABASE TO DEMONSTRATE PROBABLE CAUSE; BY FAILING TO INTRODUCE ANY EVIDENCE ON THE ISSUE, THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE STOP (FOURTH DEPT).

The Fourth Department, reversing the judgment of conviction, suppressing the physical evidence and dismissing the indictment, over a two-justice dissent, determined the People did not demonstrate that the traffic stop was justified because the People offered no proof defendant’s license had been suspended at the time of the stop. An officer testified, just prior to stopping the defendant, he checked the DMV database on his in-vehicle computer where the suspension of defendant’s license was indicated. But no evidence establishing the license suspension or the accuracy of the DMV database was introduced:

Defendant contends that the People were required to establish, at the suppression hearing, that defendant’s license had been suspended, because defendant challenged the reliability of the DMV information, and that the court therefore erred in refusing to suppress physical evidence. We agree.

“It is well settled that, although ‘a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance’ ” … . As relevant here, a vehicle stop is permissible when based on probable cause that the driver has committed a traffic violation … .

Under the “fellow officer rule” …. , “[a] police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability” … , and the same rule applies to the DMV database accessible on an in-vehicle computer … . “[T]he probabilities are that such detailed information of the type in these communications does not find its way onto the police air waves [or mobile data terminal] without substantial basis” … .

“But where on a motion to suppress, a challenge to the [officer’s] action is made, the presumption of probable cause that originally cloaked that action disappears from the case” … .  If a defendant raises a “specific challenge” to the reliability of certain transmitted information, that information may not be relied upon by the suppression court … . “[B]are reliance on an unsubstantiated hearsay communication from the instigating officer or department will not suffice for probable cause” … . “[T]he People must demonstrate that the sender or sending agency itself possessed the requisite probable cause to act” … . “The pertinent inquiry in all situations has been directed to the nature and reliability of the information possessed by the person or agency transmitting the information” … . People v McGuire, 2026 NY Slip Op 04597, Fourth Dept 7-24-26

Practice Point: When the accuracy of information transmitted to the arresting officer is specifically challenged, the People must prove the reliability of the information. Here the accuracy of the DMV database (showing that defendant’s license had been suspended) was specifically challenged. Because the People did not attempt to prove the information in the DMV database was reliable, they did not demonstrate probable cause for the traffic stop.

 

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THE POLICE ASKED FOR DEFENDANT’S NAME AND DATE OF BIRTH; HE PROVIDED A FALSE NAME; HE PROVIDED HIS REAL NAME ONLY AFTER HE WAS WARNED OF THE CONSEQUENCES OF PROVIDING A FALSE NAME AND DETAINED; THE POLICE QUESTIONING DID NOT TRIGGER THE NEED FOR THE MIRANDA WARNINGS BECAUSE THE POLICE WERE SEEKING ONLY “PEDIGREE” INFORMATION; THERE WAS A TWO-JUSTICE DISSENT (FOURTH DEPT).

he Fourth Department, affirming the conviction, determined there was no Miranda violation because the police asked only pedigree questions. The two dissenters disagreed:

… [T]he police officer, accompanied by two other members of the police department, responded to a residence after receiving a complaint that there were unwanted guests there. Upon their arrival, the complainant reported to the police that there were two unwanted guests in the residence: a female guest identified by name and a male guest supposedly named “Rodney.” The police identified the female guest by name and she agreed to leave without argument.

The police located the male guest—later identified as defendant—in the closet of a back bedroom underneath some clothes and other items. The police asked defendant to identify himself by name and date of birth. Defendant provided the police with the false name “Rodney Miller” and a purported date of birth. The police gave defendant multiple warnings that it was illegal to lie to them about his name, but defendant continued to provide the false name. The officer testified that defendant was not free to leave during the interaction until the police identified him. The officer explained, among other things, that the police did not provide defendant with Miranda warnings prior to asking for his name and date of birth because they were merely attempting to obtain defendant’s pedigree information as a routine matter for any such encounter. The officer further testified that the police then informed defendant that he was going to be detained and, upon being detained, defendant provided his real name. Thereafter, the police ultimately determined that there was an order of protection in place against defendant and in favor of the female guest. The police then arrested defendant for violating the order of protection and for providing false pedigree information. * * *

… [W]e conclude that the court properly determined that the pedigree exception applied and thus properly denied that part of defendant’s omnibus motion seeking to suppress his statements to the police. The officer testified at the suppression hearing that the purpose of asking pedigree questions of both the female guest and defendant was “[t]o identify who they were and advise them they were no longer welcome there,” and that requesting general information such as names and dates of birth was routine for any such encounter. The officer’s testimony thus established the administrative purpose for seeking pedigree information during an encounter of that nature: the police must know with whom they are speaking in a residence … . The People “thereby established the threshold basis for the pedigree exception to apply, i.e., the questions were reasonably related to the police’s administrative concerns” … . * * *

As the Court of Appeals has cautioned, “[a]lthough there may be some circumstances where asking a suspect for core identifying information such as name, date of birth, and address will not qualify for the pedigree exception to Miranda, those circumstances will be rare” (id. at 416). People v Milton, 2026 NY Slip Op 04584, Fourth Dept 7-24-26

Practice Point; The police may ask for a person’s name and date of birth without providing Miranda warnings, even when the police are aware the person has provided a false name.

 

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PLAINTIFFS, RESIDENTS OF EAST BUFFALO, STATED CAUSES OF ACTION AGAINST THE STATE FOR VIOLATION OF THE PUBLIC TRUST DOCTRINE AND VIOLATION OF THE GREEN AMENDMENT TO THE NEW YORK CONSTITUTION BY THE CONSTRUCTION OF AN EXPRESSWAY (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Nowak, over an extensive dissent, determined the complaint alleging the State, in constructing an expressway, violated the public trust doctrine and the Green Amendment, should not have been dismissed:

Plaintiffs are individual residents of East Buffalo who contend that they suffered adverse health consequences due to traffic on a nearby expressway (portions of New York State Routes 33 and 198) and an unincorporated association of people who live or work near the expressway. They commenced this action alleging that defendants: (1) violated the public trust doctrine by alienating parkland comprising the former Humboldt Parkway for the construction of the expressway; and (2) are violating the Green Amendment to the New York State Constitution (NY Const, art 1, § 19) by continuing to maintain and operate the expressway. * * *

Having expressly granted authority to construct arterial highways within parks in other cities and having declined to do so with respect to Humboldt Parkway, it cannot be said as a matter of law that the legislature “plainly conferred” the alienation of Humboldt Parkway … . * * *

The Green Amendment to the New York State Constitution states that “[e]ach person shall have a right to clean air and water, and a healthful environment” (NY Const, art I, § 19 …). Plaintiffs specifically allege in the amended complaint that the Green Amendment is self-executing, and defendants did not dispute that contention below. East Side Parkways Coalition v New York State Dept. of Transp., 2026 NY Slip Op 04562, Fourth Dept 7-24-26

Practice Point: Here plaintiffs, residents of East Buffalo who live near an expressway, stated causes of action against the State stemming from the construction of the expressway on land which once served as a park.

 

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ALTHOUGH THE CONTRACT WAS BETWEEN SOPHISTICATED PARTIES, THE CLAUSE “THE OWNER AND ARCHITECT AGREE TO MUTUALLY WAIVE EACH OTHER [SIC] RIGHT TO SUE OR PLACE CLAIMS AGAINST EACH OTHER” WAS VOID AS AGAINST PUBLIC POLICY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the contract clause “THE OWNER AND ARCHITECT AGREE TO MUTUALLY WAIVE EACH OTHER [sic] RIGHT TO SUE OR PLACE CLAIMS AGAINST EACH OTHER” was unenforceable as against public policy:

… [T]he waiver provision … purports to completely foreclose the possibility of any form of judicial or nonjudicial review. Although … the agreement was negotiated at arm’s length between sophisticated parties, freedom of contract is not merely an individual right, and enforcing the waiver provision has implications beyond the individual choices of the contracting parties … . In 159 MP Corp. v Redbridge Bedford, LLC (33 NY3d 353), the Court of Appeals upheld a waiver precluding the plaintiffs from commencing a declaratory judgment action. The Court of Appeals noted that “[c]ritically, the waiver clause at issue here does not preclude access to the courts but leaves available other judicial avenues through which plaintiffs may adjudicate their rights under the leases” … . The Court of Appeals specified that “the waiver does not impair plaintiffs’ ability to seek damages on breach of contract or tort theories” … .

Here, in contrast, the waiver provision precludes access to the courts and leaves no judicial or nonjudicial avenues through which the plaintiff may adjudicate his rights under the agreement. Thus, the waiver provision is void and unenforceable as against public policy … . Hochhauser v Urban Off. Architecture, PLLC, 2026 NY Slip Op 04491, Second Dept 7-22-26

Practice Point: A contract clause with waives all access to the courts is void as against public policy.​

 

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DEFENSE COUNSEL PURSUED A REASONABLE ALTERNATIVE STRATEGY IN MOVING TO SUPPRESS DEFENDANT’S STATEMENTS THAT DID NOT REQUIRE AN INVESTIGATION INTO DEFENDANT’S MENTAL HEALTH AND SUBSTANCE ABUSE; THEREFORE DEFENSE COUNSEL’S PURPORTED FAILURE TO INVESTIGATE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissenting opinion, determined defense counsel’s purported failure to investigate defendant’s mental health and substance abuse history in order to challenge the voluntariness of defendant’s statements to police did not constitute ineffective assistance of counsel. Counsel’s decision to employ an alternative strategy was reasonable:

Defendant’s assigned counsel later moved to suppress defendant’s statements. At a pretrial hearing, counsel argued that defendant provided those statements while operating under a reasonable belief that he would be given immunity in exchange for his information, and therefore the statements were involuntary. Counsel supported that argument with a variety of evidence, including, among other things, defendant’s refusal to offer any statements until he could speak with an assistant district attorney (ADA), an unrecorded conversation with an ADA, and a note in the police file in defendant’s handwriting stating that he would need immunity and payment in exchange for his information. Counsel also relied upon defendant’s Miranda waiver form, on which he crossed out “defendant” and wrote in “C.I.,” for confidential informant. Defendant also testified at the suppression hearing that he had been offered immunity by the ADA during the unrecorded conversation.  * * *

In 2019, while his direct appeal was still pending, defendant moved to vacate the judgment pursuant to CPL 440.10. He argued that his trial counsel was ineffective for failing to investigate his history of mental health disorders and substance abuse. The court ordered a hearing, at which defendant’s trial counsel testified. Counsel asserted that although he was aware of defendant’s mental health and substance abuse history, defendant “had given [counsel] such a clear picture” of what happened that “was supported by documentary evidence” and that in counsel’s “50 years of practicing [he had] never had a case where [he had] seen, or known of a case where [he had] seen that a person” who shared defendant’s mental health diagnosis successfully suppress a statement on that ground. People v Fernandez, 2026 NY Slip Op 03915, CtApp 6-23-26

Practice Point: Although defendant’s mental health and substance abuse history may have been used to argue his statements to police were not voluntary, defense counsel felt that argument would fail and pursued a reasonable alternative strategy which did not require a mental-health and substance-abuse investigation. Defense counsel was therefore not “ineffective.”

 

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THE NYS AND NYC “RIGHT TO RECORD ACTS,” WHICH GIVE CITIZENS THE RIGHT TO RECORD POLICE ACTIVITIES, DO NOT ALLOW RECORDING IN PUBLICLY ACCESSIBLE POLICE-STATION LOBBIES (CT APP).

The Court of Appeals, answering a certified question from the Second Circuit, determined that the NYS and NYC Right to Record Acts (RTRA’s), which allow citizens to record police activities, do not allow recording inside police stations:

We … do not opine as to the full scope of the RTRAs’ application or any other places where the RTRAs may apply. We reformulate the question as follows:

“Does either N.Y. Civil Rights Law § 79-p or Administrative Code of the City of New York §§ 14-189 afford individuals such as plaintiff Reyes the right to video record law enforcement activities inside the publicly accessible lobbies of police stationhouses?”

We answer that question in the negative. Reyes v City of New York, 2026 NY Slip Op 03914, CtApp 6-23-26

 

PLAINTIFF SOCIAL MEDIA PLATFORMS BROUGHT SUIT IN FEDERAL COURT CLAIMING CERTAIN PROVISIONS OF NEW YORK’S “HATEFUL CONDUCT LAW” (HCL) VIOLATE THE FIRST AMENDMENT; THE SECOND CIRCUIT CERTIFIED THREE NARROW QUESTIONS ABOUT THE MEANING AND APPLICABILITY OF THE STATUTE TO THE COURT OF APPEALS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a three-judge dissent, answering narrow certified questions from the Second Circuit, determined the meaning of certain provisions of the Hateful Conduct Law (HCL) which is codified in General Business Law section 394-ccc: The law seeks to address “hateful conduct” on social media platforms:

In response to increasing violence fueled by hateful rhetoric on social media, the legislature enacted General Business Law § 394-ccc (hereinafter the “Hateful Conduct Law” or “HCL”) with the aim of “requiring social media networks to provide and maintain mechanisms for reporting hateful conduct on their platform[s]” … . Before the law became effective, the social media network plaintiffs obtained a stay of its enforcement from the federal district court, claiming that its provisions would effectively compel them to speak out against hateful conduct and otherwise chill the publication of qualifying content in violation of the First Amendment.

In reviewing that order on appeal, the United States Court of Appeals for the Second Circuit has certified three questions to us concerning the scope of the statute. The first two questions essentially ask whether a social media network can comply with the HCL without explicitly referencing its definition of hateful conduct. Applying our ordinary canons of statutory construction, we answer those questions in the affirmative. The third certified question essentially asks whether the statute requires a social media network to respond to a user report of hateful conduct. We answer that question in the negative. Volokh v James, 2026 NY Slip Op 03913, CtApp 6-23-26

 

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THE LABOR LAW PREVAILING-WAGE PROVISIONS APPLY TO PUBLIC WORKS CONTRACTS; ANY CONTRACTUAL ATTEMPT TO SHORTEN THE STATUTE OF LIMITATIONS IS UNENFORECABLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, answering two certified questions from the Second Circuit, determined (1) the Labor Law provisions requiring that workers receive the prevailing wage for public works projects apply irrespective of the language in a contract, and (2) any provisions purporting to shorten the statute of limitation periods in public works contracts are unenforceable:

We have accepted two certified questions from the United States Court of Appeals for the Second Circuit concerning third-party beneficiary breach of contract claims to enforce the right of a public works project employee to receive a prevailing wage under the Labor Law. We hold that Labor Law § 220 makes such claims available regardless of the underlying contract’s language and that given the unique status of the constitutional and statutory right to a prevailing wage, agreements to shorten limitation periods in public works contracts are unenforceable against such claims. ​Walton v Comfort Sys. USA (Syracuse), Inc., 2026 NY Slip Op 03911, CtApp 6-23-26

 

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