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THE SECOND DEPARTMENT REVERSED SUPREME COURT AND FOUND THERE WAS “GOOD CAUSE” FOR THE 27-YEAR DELAY BETWEEN THE HOMICIDE AND DEFENDANT’S ARREST FOR MURDER (SECOND DEPT).

The Second Department, reversing Supreme Court, in a detailed full-fledged opinion by Justice Wan, determined defendant’s due process rights were not violated by a 27-year delay between the homicide and defendant’s arrest for murder. The opinion is necessarily fact-specific. The facts were analyzed using the “Taranovich factors” for determining whether a defendant’s right to a speedy trial or due process right to prompt prosecution has been violated. The facts are too complex to fairly summarize here:

“The Court of Appeals has articulated the following factors to consider when determining whether a defendant’s right to a speedy trial or due process right to prompt prosecution has been violated: (1) the extent of the delay, (2) the reason for the delay, (3) the nature of the underlying charge, (4) whether there has been an extended period of pretrial incarceration, and (5) whether there is any indication that the defense has been prejudiced by the delay” (hereinafter the Taranovich factors) (… see People v Taranovich, 37 NY2d 442, 445). “The Taranovich framework is a holistic one” … . Thus, “[n]o one factor or combination of the factors is necessarily decisive or determinative of the prompt prosecution claim, but rather the particular case must be considered in light of all the factors as they apply to it” … . “Where, as here, there has been a protracted preindictment delay over a period of years, the burden is on the prosecution to establish good cause” … . People v Grant, 2026 NY Slip Op 00910, Second Dept 2-18-26

Practice Point: Consult this decision for insight into how the “Taranovich factors” are applied to the facts to determine whether there is “good cause” for an extensive delay in prosecution, here 27 years.

 

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

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

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

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

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

 

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

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

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

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

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

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

 

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THE RECORD DOES NOT DEMONSTRATE THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the waiver of indictment was invalid because it was not signed in open court:

Defendant’s waiver of indictment … was invalid because the record does not demonstrate that defendant satisfied the requirement of NY Constitution, art 1, § 6 and CPL 195.20 that the written waiver of indictment must be signed by the defendant in open court in the presence of his or her counsel … . The indictment waiver was dated February 3, 2021, the same date on which the SCI was issued, but a date on which there appears to have been no appearance in this case. Further, the court’s description of the indictment waiver suggested that the court understood it to have been signed before the day of the plea. The record as a whole does not clearly support an inference that the “open court” requirement was satisfied. A less than compelling inference does not fulfill the “unequivocal dictate” that the record demonstrate that the defendant signed the waiver in open court … . “Compliance with this unequivocal dictate is indispensable to a knowing and intelligent waiver and the failure to adhere to this strict procedure is a jurisdictional defect which survives a guilty plea and appeal waiver and need not be preserved” … . People v Perez, 2026 NY Slip Op 00210, First Dept 1-15-26

Practice Point; If the record does not unequivocally demonstrate a waiver of indictment was signed in open court, the guilty plea is invalid. The issue need not be preserved for appeal.

 

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THE DISMISSAL OF TWO FEDERAL LAWSUITS AGAINST DEFENDANT SCHOOL (ALLEGING SEXUAL AND PHYSICAL ABUSE OF PLAINTIFFS-STUDENTS) ON STATUTE-OF-LIMITATIONS GROUNDS DID NOT GIVE RISE TO A “VESTED RIGHT” REQUIRING THE DISMISSAL OF THE STATE ACTION UNDER THE CHILD VICTIMS ACT ALLEGING THE SAME FACTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined that the dismissal of two federal lawsuits as barred by the statute of limitations did not create a “vested right” such that a state Child Victims Act action based on the facts alleged in the federal lawsuits should be dismissed. The lawsuits stemmed from allegations of sexual and physical abuse of plaintiffs, students at defendant school:

The federal doctrine of vested rights has roots in common and even natural law. * * *

The case most often cited by modern cases for articulating the doctrine is McCullough v Virginia (172 US 102 [1898]). There, a taxpayer prevailed in a Virginia state court against the State of Virginia, obtaining a judgment for a tax refund (id.). Before the judgment was executed, the Virginia legislature repealed the legislation that had entitled the taxpayer to a refund (id.). McCullough held that the United States Constitution barred the state legislature from repudiating the state court judgment, explaining that “[it] is not within the power of the legislature to take away rights which have been once vested by a judgment,” and that when “passed into judgment the power of the legislature to disturb the rights created thereby ceases” … .

McCullough, its progeny, and earlier cases establish that a final money judgment gives rise to a vested due process property right, which entitles the judgment creditor to the same constitutional protections afforded other forms of property … . * * *

In describing their purported property right, the … defendants argue that they are not asserting a property right in “any previously-applicable statute of limitations, but rather in the final federal judgments that they received.” Indeed, if the final federal judgments, standing alone, do not vest defendants with a constitutionally protected property right, the argument fails because, as the … defendants concede, “[o]f course a statute of limitations itself does not create property rights” … . M.T. v Yeshiva Univ., 2026 NY Slip Op 00218, First Dept 1-15-26

Practice Point: The dismissal of federal lawsuits as barred by the statute of limitations did not constitute a “vested right” requiring dismissal of the state action under the Child Victims Act based on the same facts.​

 

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THE NYC ZONING RESOLUTION WHICH ALLOWS “JOINT LIVING-WORK QUARTERS FOR ARTISTS” TO BE CONVERTED TO UNRESTRICTED RESIDENTIAL USE UPON PAYMENT OF A $100 PER-SQUARE-FOOT FEE DOES NOT VIOLATE THE “TAKINGS CLAUSE” OF THE US CONSTITUTION (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a concurrence and a dissent. determined that a New York City Zoning Resolution which allows “Joint Living-Work Quarters for Artists” units in SoHo and NoHo to be converted to unrestricted residential use upon payment of $100 per square foot did not violate the Takings Clause in the Fifth Amendment to the US Constitution. The 1971 “Joint Living-Work Quarters for Artists” (JLWQA) designation allowed certified artists to affordably reside and work in buildings formally used for manufacturing which were not zoned for residential use. Over the decades the areas have been gentrified and became predominately occupied by non-artists. The challenged 2021 zoning resolution essentially allows any JLWQA unit to be converted to unrestricted residential unit by paying a fee. The petitioners argued the fee violates the Takings Clause:

We conclude that petitioners do not have a compensable property interest within the meaning of the Takings Clause, as the United States Supreme Court has interpreted it, and that the fee therefore does not constitute a taking. The Takings Clause protects property owners against exploitative governmental conduct that seeks to take property without paying for it … . The newly granted opportunity to transform the essential nature of a restricted JLWQA unit into a different, unrestricted interest is not in itself a property interest. Rather, it is the restricted JLWQA unit itself, and the concomitant bundle of property rights resulting from the City’s designation as such, that constitutes the property that the government cannot take without just compensation. The creation of an optional pathway to convert to unrestricted residential use upon payment of the fee has not extinguished or diminished petitioners’ property rights in their JLWQA units. The City gains no interest in the units upon conversion, and even if petitioners held a constitutionally protected property interest in converting their property, the rezoning plan does not subject petitioners to any governmental coercion to transfer property that they would otherwise retain.

Furthermore, a typical Takings Clause case involves the government’s physical acquisition or use of private land without compensation, or its monetary exaction from a property owner in lieu of a transfer of their private property interest. By contrast, a standalone monetary fee such as the one in this case does not implicate the Takings Clause merely because it is levied upon a property owner. Matter of Coalition for Fairness in Soho & Noho, Inc. v City of New York, 2026 NY Slip Op 00076, CtApp 1-13-26

 

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THE SIX-YEAR DELAY BETWEEN DEFENDANT’S SEXUAL-MISCONDUCT GUILTY PLEA AND THE SORA RISK-ASSESSMENT HEARING DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge concurrence, determined that the six-year delay between defendant’s guilty plea to sexual misconduct and the SORA risk-level assessment hearing did not deprive defendant of his right to due process of law:

Defendant pled guilty to one count of sexual misconduct, a sex offense requiring registration under the Sex Offender Registration Act (SORA). Nevertheless, defendant was not notified of his SORA registration requirements, and approximately six years passed from the time of his plea before this mistake was brought to the attention of the Board of Examiners of Sex Offenders. After a full, albeit delayed, SORA proceeding, defendant was designated a level one sex offender, the least restrictive designation available, with the required twenty-year registration period ordered nunc pro tunc from the date of his release. Defendant claims that the delay between his plea and his SORA hearing violated his substantive due process rights. We disagree and hold that defendant failed to make the required showing that the delay prejudiced his ability to present his case to the SORA court and for that reason, we affirm. People v Collier, 2026 NY Slip Op 00074, CtApp 1-8-26

Practice Point: Consult this opinion for a discussion of the substantive and procedural due process protections raised by a six-year delay in holding a SORA risk-level assessment hearing.

 

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THE PEOPLE AGREED DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WARRANTED A SUPPRESSION HEARING BUT ARGUED THE ISSUE WAS NOT PRESERVED BECAUSE THE ORDER DENYING A SUPPRESSION HEARING INCLUDED THE PHRASE “WITH LEAVE TO RENEW UPON A SHOWING OF SUFFICIENT FACTUAL ALLEGATIONS” RENDERING THE ORDER NONFINAL AND UNAPPEALABLE; THE FIRST DEPARTMENT NOTED THAT NO OTHER EVIDENCE CAME TO LIGHT WHICH COULD HAVE SUPPORTED A RENEWAL MOTION; THE ORDER WAS THEREFORE DEEMED FINAL AND APPEALABLE (FIRST DEPT).

The First Department, holding defendant’s plea and sentencing in abeyance, remitted the matter for a Mapp/Dunaway hearing to determine whether the seizure of a gun dropped by the defendant was facilitated by unlawful police conduct. In the omnibus motions defendant argued that he dropped the gun as a spontaneous response to the police officers’ approaching and then chasing him without reasonable suspicion. On appeal, the People agreed defendant was entitled to a hearing. The contested issue on appeal was whether the order denying the suppression motion “with leave to renew upon a showing of sufficient factual allegations” rendered the order nonfinal and therefore unappealable. The First Department determined the order was final:

The issue in contention on this appeal is whether the court’s summary denial of defendant’s suppression motion — which ended with the statement that the motion “is denied, with leave to renew upon a showing of sufficient factual allegations” — qualifies as an “order finally denying a motion to suppress evidence” which would preserve the suppression issue for appeal under CPL 710.70(2). While phrases like “leave to renew” or “leave to submit” may be some indicia of a lack of finality under CPL 710.70(2), they do not, standing alone, render a court’s ruling nonfinal. * * *

… [T]he court incorrectly rejected the defendant’s detailed recitation of his suppression theory and there was no further evidence produced by the People that could bolster defendant’s theory on renewal.

Accordingly, we remit to Supreme Court to hold a Mapp/Dunaway hearing. People v Diaby, 2025 NY Slip Op 07343, First Dept 12-30-25

Practice Point: Here the People argued that the order denying a suppression hearing was nonfinal and therefore unappealable because it included the phrase “with leave to renew upon a showing of sufficient factual allegations.” The First Department noted that this was not a case where additional evidence came to light which would have supported renewal and the defendant failed to make a renewal motion. Here no new evidence came to light. The denial of the suppression motion was therefore deemed a final, appealable order.

 

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EVERY STATEMENT DEFENDANT MADE AFTER HE TOLD THE OFFICERS “I AIN’T GOT NOTHING TO TALK ABOUT” SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant had unequivocally asserted his right to remain silent and all statements defendant made thereafter should have been suppressed:

After defendant indicated that he understood [the Miranda] rights, the officer asked whether defendant would agree to waive them and speak to the officer. Defendant did not respond in the affirmative. Instead, he said, “I ain’t got nothing to talk about. I just want to go to jail. I want to go to sleep.” * * *

… [D]efendant said in no uncertain terms that he did not want to talk to the officer and instead wanted to be taken to jail … , and “[n]o reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police” … . The officer nevertheless continued to ask defendant questions that were “reasonably likely to elicit an incriminating response” … . Under the circumstances, we conclude that the court’s determination that defendant did not unequivocally invoke his right to remain silent is “unsupported by the record” … . People v Williams, 2025 NY Slip Op 07158, Fourth Dept 12-23-25

Practice Point: If a defendant tells the police “I ain’t got nothing to talk about” and the police continue questioning him, that is a Miranda violation requiring suppression.

 

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ALTHOUGH THE 16-YEAR-OLD DEFENDANT IN THIS MURDER CASE WAS LIABLE AS AN ACCOMPLICE, ACCOMPLICE-LIABILITY STANDING ALONE DOES NOT PRECLUDE REMOVAL TO FAMILY COURT; A GUILTY PLEA DOES NOT FORFEIT AN APPELLATE CHALLENGE TO THE DENIAL OF REMOVAL; THE WAIVER OF APPEAL WAS INVALID BECAUSE IT PURPORTED TO FORECLOSE ALL APPELLATE CHALLENGES (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, over a two-justice dissent, determined (1) defendant’s waiver of appeal was invalid because it purported to foreclose all appellate challenges; and (2) the statutory procedure for removing the 16-year-old defendant’s prosecution to Family Court was violated. The fact that defendant was charged as an accomplice in this carjacking/murder case did not disqualify the defendant from the removal procedure. Once the removal procedure is started, the People have 30 days to demonstrate removal is not appropriate. The majority disagreed with the dissent’s argument that the “removal-to-Family-Court-issue” was forfeited by defendant’s guilty plea:

Defendant orally waived his right to appeal and executed a written waiver thereof. The language in the written waiver, however, is “inaccurate and misleading insofar as it purports to impose ‘an absolute bar to the taking of a direct appeal’ and to deprive defendant of his ‘attendant rights to counsel and poor person relief, [as well as] all postconviction relief separate from the direct appeal’ ” … . * * *

Defendant contends that the court erred in concluding that the People established by a preponderance of the evidence that defendant “caused significant physical injury to a person other than a participant in the offense” (CPL 722.23 [2] [c] [i]) and that defendant was therefore disqualified from having the matter transferred to Family Court. Initially, we respectfully disagree with our dissenting colleagues that defendant’s contention is forfeited by his guilty plea. It is undisputed that a guilty plea does not “extinguish every claim on appeal” and that the issues that are not forfeited by the plea generally “relate either to jurisdictional matters . . . or to rights of a constitutional dimension that go to the very heart of the process” … . * * *

The plain language of CPL 722.23 (2) (c) supports the conclusion that the Legislature did not intend for the circumstances disqualifying an adolescent offender from removal to Family Court to be coextensive with criminal liability, including principles of accessorial liability, for a statutorily designated violent crime. Indeed, such a result could have been achieved by disqualifying adolescent offenders based solely on the crime charged without reference to any further factors. People v Jacobs, 2025 NY Slip Op 07124, Fourth Dept 12-23-25

Practice Point: Here the 16-year-old defendant should not have been denied removal to Family Court solely based on accomplice liability for murder. The right to challenge the denial of removal was not forfeited by defendant’s guilty plea. The waiver of appeal was invalid because it purported to foreclose all appellate challenges.

 

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