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THE JUDGE’S FAILURE TO MENTION THE POSTRELEASE SUPERVISION (PRS) COMPONENT OF THE SENTENCE RENDERS THE PLEA UNCONSTITUTIONAL; THE ISSUE NEED NOT BE PRESERVED (FIRST DEPT).

The First Department, vacating defendant’s plea, determined the judge never informed the defendant of the postrelease supervision (PRS) component of the sentence. The court noted that the issue may be raised for the first time on appeal. The issue need not be preserved by a motion to withdraw the plea or vacate the conviction:

The record does not establish that the court advised defendant when he pleaded guilty that the sentence would include a period of PRS. Consequently, the plea “cannot be deemed knowing, voluntary and intelligent” … , and it must be vacated.

Where a trial judge does not fulfill the obligation to advise a defendant of PRS during the plea allocution, “the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a post-allocution motion” … . The prosecution’s reference to its offer of PRS at the plea proceeding does not change this conclusion where the court itself never mentioned PRS at the plea proceeding … . Similarly, defendant’s failure to move to withdraw the plea or vacate the judgment of conviction does not bar him from raising the issue at this time. People v Ndiaye, 2026 NY Slip Op 03080, First Dept 5-14-26

Practice Point: A guilty plea is not “knowing, voluntary and intelligent” if the judge fails to mention the postrelease supervision (PRS) component of the sentence.

 

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AFTER A TRAFFIC STOP, THE POLICE HAD PROBABLE CAUSE FOR A WARRANTLESS SEARCH OF DEFENDANT’S AUTOMOBILE FOR EVIDENCE OF DWI; DURING THE SEARCH THE POLICE OPENED A CLOSED BOX AND DISCOVERED A FIREARM; REVERSING SUPREME COURT, THE SECOND DEPARTMENT DETERMINED THE POLICE HAD PROBABLE CAUSE TO SEARCH FOR ALCOHOL IN THE CLOSED BOX (SECOND DEPT).

The Second Department, reversing Supreme Court on the People’s appeal, determined the police, after a traffic stop, had probable cause to search the defendant’s car for evidence of DWI. The police therefore had probable cause to open a closed box which could have contained alcohol, but in fact contained a firearm:

… Supreme Court credited the officers’ testimony that the defendant apparently had been drinking, and those factual findings and credibility determinations are entitled to great deference on appeal … . Thus, the police had probable cause to search the vehicle for evidence of the crime of operating a motor vehicle while under the influence of alcohol as a misdemeanor.

“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search” … , which may include closed containers … “found therein in which there was probable cause to believe that the [contraband] may be found” … .

The scope of a warrantless search of a vehicle is defined not by the nature of the container in which the contraband is secreted, but by the object of the search and the places in which there is probable cause to believe that it may be found … . The relevant inquiry here is not whether the cardboard box could physically hold an open container of alcohol, but whether there was reason to believe that it did … .

Here the cardboard box containing the gun was unsealed and heavy, indicating it was not empty. Further the defendant moved his hands under the seat when he was stopped, indicating he may have been secreting contraband in the box. The issue was whether that search could extend to the cardboard box. The label on the box stating that it originally contained “lithium battery portable power station” was not particularly significant since the box was not new, was unsealed, and was of a size and shape that could store a variety of objects, including an alcohol bottle or a gun.  People v Perry, 2026 NY Slip Op 03005, Second Dept 5-13-26

Practice Point: Upon a traffic stop, evidence the driver had been drinking authorized a warrantless search of every part of the car for alcohol. Because there was reason to believe a closed box could contain alcohol, the police were authorized to search the box and seize the firearm inside.

 

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IF A DEFENDANT CHALLENGES THE LEGALITY OF HIS ARREST, THE PEOPLE MUST PROVE THE ARREST WAS BASED UPON PROBABLE CAUSE; THE ISSUANCE OF AN I-CARD DEMONSTRATING PROBABLE CAUSE IS NOT, BY ITSELF, ENOUGH; THERE MUST BE TESTIMONY AT THE SUPPRESSION HEARING DEMONSTRATING THE ARREST WAS IN FACT BASED ON THE INFORMATION IN THE I-CARD (SECOND DEPT).

The Second Department, reversing the denial of defendant’s motion to suppress his statements, determined the People did not prove the legality of defendant’s arrest at the suppression hearing. An I-card demonstrating probable cause for defendant’s arrest had been issued by the police two months before the arrest. But no one testified that the arrest was based upon the information in the I-card:

At a suppression hearing, a detective testified that he had generated still images and wanted flyers from a video of the alleged robbery, circulated the still images and wanted flyers throughout the police department, and activated an I-card for the defendant’s arrest, and that the defendant was apprehended by the Queens Warrant Squad nearly two months later. The arresting officers did not testify at the suppression hearing, nor did the detective testify about the circumstances of the arrest. After the hearing, the Supreme Court, among other things, denied that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials. The defendant thereafter pleaded guilty to attempted assault in the first degree. The defendant appeals.

When a defendant challenges the admission of statements he or she has made, claiming they are the product of an illegal arrest, the People bear the burden of going forward to establish the legality of the police conduct in the first instance … . Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of an officer in possession of information sufficient to constitute probable cause for the arrest … .

Here, the People failed to present evidence sufficient to establish that the arresting officers stopped and arrested the defendant on probable cause allegedly communicated by the I-card … . Contrary to the People’s contention, the issuance of an I-card nearly two months before the defendant’s arrest, standing alone, was insufficient to establish that the officers who stopped and detained the defendant were actually acting upon the direction of an officer in possession of information sufficient to constitute probable cause … . People v Moreno, 2026 NY Slip Op 03004, Second Dept 5-13-26

Practice Point: The existence of an I-card does not, by itself, demonstrate an arrest was based on probable cause. There must be testimony by the arresting officer that the arrest was, in fact, based upon the information in the I-card.

 

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EVEN IF DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, THE JUDGE SO INFORMED HIM AND HE ACKNOWEDGED THE CONSEQUENCES ON THE RECORD; THEREFORE DEFENDANT WAS UNABLE TO SHOW HE WAS PREJUDICED BY THE ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction by guilty plea on ineffective assistance grounds should have been denied. Even if defense counsel had failed to inform defendant of the deportation-consequences of his guilty plea, the defendant was made aware of them by the judge:

The defendant failed to establish, sufficiently to warrant an evidentiary hearing, that his counsel’s allegedly deficient advice deprived him of the effective assistance of counsel under either the federal or state constitutional standards … . It is clear from the record of the plea proceeding that prior to accepting the plea, the court advised the defendant that he may be subject to deportation as a result of his plea of guilty. The defendant acknowledged his understanding thereof and confirmed that he wished to plead guilty. Under the circumstances of this case, even if defense counsel had failed to advise the defendant of the possible immigration consequences of pleading guilty, the defendant was indisputably aware of those possible consequences before he entered his favorable plea … . Accordingly, the defendant cannot show prejudice resulting from defense counsel’s alleged failure to provide that advice himself … , and there is no reasonable probability that the defendant would not have pleaded guilty but for defense counsel’s alleged deficiency … .  People v Lewis, 2026 NY Slip Op 03001, Second Dept 5-13-26

Practice Point: Here defendant’s motion to vacate his conviction by guilty plea based upon ineffective assistance of counsel should have been denied without a hearing. Even if defense counsel was ineffective in failing to inform defendant of the deportation consequences of his plea, defendant was not prejudiced because the judge so informed him.

 

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ALTHOUGH RPTL 421-A DOES NOT EXPLICITLY ALLOW JUDICIAL REVIEW OF THE COMPTROLLER’S TAX RULINGS, THE CASE LAW SUPPORTS THE AVAILABILITY OF ARTICLE 78 REVIEW; THEREFORE THE STATUTE IS NOT UNCONSTITUTIONAL (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined RPTL 421-a (16) (c) (x) does not foreclose judicial review of the Comptroller’s rulings concerning certain tax benefits available to property developers who provide affordable housing and pay construction workers at the statutory rate. Although the statute does not explicitly allow judicial review, the case law supports the conclusion that Article 78 review is available:​

… Supreme Court has broad authority to provide relief from an administrative determination in a CPLR article 78 proceeding, both during the pendency of the proceeding and following the completion of judicial review … . During the pendency of such a proceeding, the court may “stay . . . the enforcement of [the] determination under review” (CPLR 7805 …). Correspondingly, once judicial review is complete, the reviewing court is authorized to “annul or confirm . . . or modify” the determination “in whole or part” and may “direct. . . specified action by the respondent” (CPLR 7806). The court’s authority under CPLR 7806 to direct specified action by the respondent agency encompasses “any . . . directions needed to secure to the petitioner the [a]rticle 78 relief ordered” and a court’s judgment embodying those directions “is enforceable by contempt proceedings” … . In other words, if a reviewing court found the Comptroller’s final determination under RPTL 421-a (16) (c) (x) to have been made in violation of lawful procedure, affected by an error of law, arbitrary and capricious or lacking in substantial evidence (see CPLR 7803 [3], [4]), it would have broad remedial power under CPLR 7806 to annul the Comptroller’s determination, which would, in effect, render the underlying administrative judgment unenforceable, and could also direct the Comptroller to take action to secure the vacatur of the administrative judgment. Matter of Bldg 44 Devs. LLC v State of New York, 2026 NY Slip Op 02898, Third Dept 5-7-26

Practice Point: Even where a statute does not explicitly allow judicial review, the case law may support Article 78 review, rendering the statute constitutional.

 

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NEW YORK’S “TOLLING” PROVISION FOR PREDICATE FELONIES REQUIRES ONLY A MATHEMATICAL CALCULATION TO DETERMINE HOW LONG THE TEN-YEAR LOOK-BACK IS EXTENDED BY PERIODS OF A DEFENDANT’S INCARCERATION; THEREFORE THERE IS NO NEED FOR A JURY TO MAKE FACTUAL FINDINGS BEFORE THE LOOK-BACK CALCULATION CAN BE MADE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined that New York “tolling provision,” which extends the ten-year look-back for predicate felonies by the amount of time defendant was incarcerated, is a purely mathematical calculation that does not require consideration by a jury:

…New York’s tolling provision requires a determination of whether the defendant was incarcerated and, if so, the dates of incarceration (see Penal Law §§ 70.06[1][b][iv],[v]; 70.08[1][b]). Thus, the tolling provision requires “rote arithmetic calculation to be made based on certified public records” … . The determination is completely objective. There is no assessment of defendant’s conduct or culpability. Rather, it is a determination of the amount of time a defendant was incarcerated between a previous conviction and the instant offense. There need only be a review of the official records of incarceration—i.e., when the defendant was admitted into the facility, when the defendant was released and any time in between. People v Young, 2026 NY Slip Op 02883, First Dept 5-7-26

Practice Point: Consult this opinion for insight into the nature and application of New York’s predicate-felony “tolling” provision.

 

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UPON RESPONDENT’S FAILURE TO APPEAR, FAMILY COURT DISMISSED RESPONDENT’S COUNSEL AND HELD THE ORDER-OF-PROTECTION HEARING IN RESPONDENT’S ABSENCE; RESPONDENT WAS DENIED DUE PROCESS OF LAW; ORDER VACATED (THIRD DEPT).

The Third Department, reversing Family Court, vacated the order of protection issued upon respondent’s “default” based on the denial of respondent’s due process rights:

Petitioner commenced this proceeding in November 2023 seeking an order of protection against respondent. After an initial appearance and subsequent conferences at which the parties variously appeared virtually, in person or through counsel, respondent failed to appear for the April 2024 in-person hearing. Family Court directed respondent’s counsel to leave the courtroom, at which point respondent’s counsel offered to have respondent appear virtually, asserting that respondent was in “hiding” in light of criminal charges filed against petitioner in connection with her alleged stalking of, and firing a rifle at, respondent in August 2023. The court implicitly denied respondent’s request by again directing respondent’s counsel out of the courtroom. The hearing proceeded, during which petitioner testified and was subject to cross-examination by the attorney for petitioner’s children. …

Typically, “[a] party seeking to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense to the underlying claim” … . “No such showing is required, however, where a party’s fundamental due process rights have been denied” … . In this case, respondent’s counsel attended in person evidently ready to proceed, offered an excuse for respondent’s nonappearance and provided an alternate means to move forward in his absence … . Respondent’s counsel made no application to withdraw, and Family Court did not relieve respondent’s counsel, and thus respondent’s attorneys remained counsel of record when they were dismissed from the courtroom without explanation (see CPLR 321 [b] …). The court’s atypical conduct in that regard, coupled with the court’s choice to decline available options to proceed in respondent’s absence, deprived respondent of his opportunity to be heard (see CPLR 321 [a] …). Matter of April V. v Jonathan U., 2026 NY Slip Op 02702, Third Dept 4-30-26

Practice Point: An order issued upon a party’s default may be vacated when the party’s due process rights were violated by the judge. Here the judge ordered the party’s counsel to leave and held the hearing in the party’s absence after the counsel explained the party’s absence and offered to proceed virtually.

 

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DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE EMPANELING OF AN ANONYMOUS JURY CONSTITUTED INEFFECTIVE ASSISTANCE; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective for failing to object to the empaneling of an anonymous jury:

… [D]efendant contends that his trial counsel was ineffective for failing to object when County Court empaneled an anonymous jury. In support of his motion, defendant submitted the affidavit of his trial counsel, who acknowledged that the decision to empanel an anonymous jury “did not sound right” at the time, but that he did not become aware that this was possibly a reversible error until April 2024, when this Court handed down Heidrich [.226 AD3d 1096]. Defendant’s trial counsel further stated that he “had not researched the issue before . . . trial” and that the “failure to object was not a result of any strategy on [his] part.” Although the People contend that the leading case on the anonymous jury issue existed prior to defendant’s trial and had not been expanded upon by Heidrich, the People acknowledge on appeal that “the empaneling of an anonymous jury in violation of CPL 270.15 constitutes a per se denial of a defendant’s right to a fair trial that cannot be subjected to harmless error analysis.” Indeed, a single error may qualify as ineffective assistance where it “compromise[s] a defendant’s right to a fair trial” … , particularly where, like here, the jurors were only identified by numbers and the record fails to reveal whether their names were ever provided to defense counsel — “which materially heightens the risk of prejudice” … . Accordingly, under the unique circumstances of this particular case and where the legal basis for the motion is undisputed through sworn allegations (see CPL 440.30 [3]), we substitute our discretion for that of the motion court and grant defendant’s motion to vacate the judgment of conviction … . As such, remittal for a new trial is required. People v Rahaman, 2026 NY Slip Op 02696, Third Dept 4-30-26

Practice Point: Defense counsel’s failure to object to the empaneling of an anonymous jury can amount to ineffective assistance and warrant a new trial in the absence of preservation.

 

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DEFENDANT’S FUNDAMENTAL RIGHT TO BE PRESENT AT RESENTENCING WAS VIOLATED, DESPITE DEFENSE COUNSEL’S STATEMENT THAT DEFENDANT’S PRESENCE WAS NOT NECESSARY (THIRD DEPT).

The Third Department, remitting the matter for resentencing, determined defendant was denied his fundamental right to be present at resentencing. Defense counsel told the court defendant’s presence was not necessary:

… [A]s to defendant’s assertion that his fundamental right to be present at resentencing was violated, we agree. Here, County Court … received a letter from DOCCS informing the court that defendant’s two sentences of 2 to 4 years for the underlying grand larceny convictions were not in compliance with state law, and, therefore, an amendment was required. The record reflects that defendant was not produced at either the preceding conference or the resentencing proceeding. The record merely indicates that defense counsel stated, orally and in writing, that defendant’s presence was not necessary, yet there is no acknowledgment that defendant was even aware of the resentencing proceeding. As such, defendant’s fundamental right to be present at his resentencing was violated, and the matter must be remitted to County Court for resentencing on the grand larceny convictions (see CPL 380.40…). People v Cobbins, 2026 NY Slip Op 02695, Third Dept 4-30-26

Practice Point: A defendant has a fundamental right to be present at resentencing. The error need be preserved and survives defense counsel’s statement that defendant’s presence is not necessary.

 

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FATHER IN THIS CHILD SUPPORT MATTER WAS ESSENTIALLY FORCED TO PROCEED PRO SE BY THE SUPPORT MAGISTRATE IN VIOLATION OF FATHER’S RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing Family Court in this child-support matter, determined father was essentially forced to proceed pro se by the support magistrate, in violation of his right to counsel:

… [T]he Support Magistrate relieved the father’s assigned counsel upon the father’s request.

At the next proceeding … , the father appeared without counsel and indicated that he had not been assigned a new attorney. The Support Magistrate advised the father that a hearing on the mother’s violation petition was scheduled for that date and asked the father if he intended to “present a defense on [his] own, . . . not participat[e], or hir[e] an attorney.” After the father gave a nonresponsive answer, the Support Magistrate stated that “the Court will proceed on the [father’s] default.” The father again protested that he did not have an attorney. The Support Magistrate then found that the father “is choosing not to participate in the proceedings.” In an order of disposition … , the Support Magistrate found that the father willfully violated the prior order of child support. * * *

… [T]he record demonstrates that the father “did not wish to proceed pro se, but was forced to do so” … . At the proceeding on August 28, 2024, the father repeatedly protested that he did not have an attorney, and the Support Magistrate did not conduct an inquiry to determine whether the father was waiving his right to counsel or address the possibility of assigning new counsel to the father … . Moreover, although the Support Magistrate had previously cautioned the father against self-representation when the father’s former assigned counsel was relieved, the Support Magistrate at no point conducted a sufficiently searching inquiry to ensure that the father was knowingly, voluntarily, and intelligently waiving his right to counsel … . Matter of Baldwin v Peterkin, 2026 NY Slip Op 02647, Second Dept 4-29-26

Practice Point: Before allowing a party to proceed pro se, the judge or magistrate must conduct a searching inquiry to ensure the party is aware of the dangers. It is a constitutional violation to “force” a party to proceed without an attorney.

 

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