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THE LIMITED INQUIRY CONDUCTED BY THE JUDGE BEFORE HOLDING THE TRIAL IN DEFENDANT’S ABSENCE WAS INSUFFICIENT TO DEMONSTRATE DEFENDANT FORFEITED HIS RIGHT TO BE PRESENT AT THE TRIAL (SECOND DEPT).

The Second Department, reversing the judgment of conviction, determined the inquiry conducted by the judge when the defendant did not show up for trial was insufficient. The record did not establish defendant had deliberately forfeited his right to be present:

… [T]he court held a colloquy on the record, during which the court and defense counsel stated that the defendant had previously assured them of his intention to be present at trial. Defense counsel further informed the court that he did not know where the defendant was, and had looked for him in the courthouse. Defense counsel stated that he had been unable to reach the defendant that morning, but had received a message from the defendant’s mother indicating that the defendant was “on the way.” …  Following limited inquiry, the court commenced the trial in the defendant’s absence shortly after 12:00 p.m.

“‘A defendant’s right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions'” … . A defendant may “forfeit that right by deliberately absenting himself [or herself] from the proceedings” … . However, “‘before proceeding in the defendant’s absence, the court has an obligation to inquire into the surrounding circumstances to determine if the defendant’s absence is deliberate and to recite on the record the reasons for its finding,'” and “‘[t]he failure to conduct such an inquiry constitutes reversible error'” … . Furthermore, “[w]hile the right to be present may, under some circumstances, be waived by a defendant’s conduct, trial in absentia is not thereby automatically authorized” … . “Rather, the trial court must exercise its sound discretion upon consideration of all appropriate factors, including the possibility that [the] defendant could be located within a reasonable period of time, the difficulty of rescheduling trial and the chance that evidence will be lost or witnesses will disappear” … .

Here, the Supreme Court erred in conducting the trial in the defendant’s absence without sufficient inquiry into the circumstances surrounding the defendant’s absence, and the record is therefore insufficient to establish that the defendant deliberately absented himself from the proceedings and thereby forfeited his right to be present … . Furthermore, the record does not reflect that the court considered all of the appropriate factors before proceeding in the defendant’s absence … . People v Jorge, 2026 NY Slip Op 05811, Second Dept 10-7-26

Practice Point: Consult this decision for insight into the inquiry a judge must make before proceeding with a trial in the defendant’s absence.

 

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THE SUPREME COURT’S RULING IN ERLINGER V US DOES NOT ALTER THE LANDSCAPE OF NEW YORK’S PREDICATE OFFENDER STATUTES; A JUDGE, AS OPPOSED TO A JURY, CAN MAKE THE CALCULATIONS NECESSARY TO DETERMINE THE BOUNDS OF THE 10-YEAR LOOKBACK PERIOD, INCLUDING THE TOLLING OF THE LOOKBACK BY INCARCERATION (SECOND DEPT).

The Second Department, reversing the resentence, in a full-fledged opinion by Justice Landicino, determined the US Supreme Court decision in Erlinger v US “does not alter the landscape of New York’s predicate offender statutes, the constitutionality of which is well-settled.” Therefore a judge, as opposed to a jury, can make the ministerial calculations required for any tolling of the 10-year lookback period for predicate offenses:

… [T]he tolling calculation under the subject predicate felony offender statutes does not involve an inquiry into the underlying facts that led to the predicate convictions. Rather, the court is required to determine the dates that a defendant entered and was discharged from a correctional facility upon serving a prior sentence … . These ministerial calculations do not implicate any factual determination as to the defendant’s actions during a prior crime of conviction and are akin to the “fact of prior conviction” … . To the extent that a sentencing court must divine the date of the commission of the present offense in order to determine the bounds of the 10-year lookback period, it is constitutionally permitted to use Shepard documents [judicial records, plea agreements, and colloquies between a judge and the defendant] to ascertain “the jurisdiction in which the defendant’s crime occurred and its date” … . Such an inquiry certainly does not impermissibly invite the sentencing court to “try to discern what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct” … . A jury is not required to resolve an inquiry that “does not relate to the commission of the offense itself” … . To protect the rights of a defendant during sentencing as a predicate felony offender, New York’s procedural rules provide for a hearing before the judge when the defendant “controverts an allegation” in the predicate felony statement (CPL 400.21). That is all that is required—the Constitution does not entitle a defendant to a jury determination on the issue of whether a predicate offense was committed within 10 years of the commission of the instant offense, including any calculation regarding the periods during which the defendant was incarcerated. People v Gardner, 2026 NY Slip Op 05809, Second Dept 10-7-26

Practice Point: In New York, a judge, as opposed to a jury, may make the lookback calculations associated with the application of the predicate offender sentencing statutes.

 

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DEFENDANT PRESENTED SUFFICIENT EVIDENCE THAT HE WAS THE VICTIM OF ABUSE BY HIS GIRLFRIEND AT THE TIME OF THE OFFENSE TO WARRANT A HEARING ON HIS MOTION TO VACATE HIS SENTENCE AND FOR RESENTENCING PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his sentence and for resentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) should not have been denied without a hearing. The court explained what a defendant must demonstrate to warrant a hearing:

The Domestic Violence Survivors Justice Act (DVSJA) “permits courts to sentence defendants to an alternative, less severe sentence if the defendant was a victim of domestic violence and convicted of certain eligible offenses” (… see Penal Law § 60.12). The DVSJA sets forth a three-prong test for entitlement to resentencing: “(a) at the time of the instant offense, the defendant was a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the defendant . . . ; (b) such abuse was a significant contributing factor to the defendant’s criminal behavior; [and] (c) having regard for the nature and circumstances of the crime and the history, character[,] and condition of the defendant, . . . a sentence of imprisonment pursuant to [Penal Law §§ 70.00, 70.02, 70.06, 70.71(2), or (3)] would be unduly harsh” … .

A defendant’s motion for resentencing under the DVSJA “must include at least two pieces of evidence corroborating the . . . claim,” and “[a]t least one piece of evidence must be either a court record, pre-sentence report, social services record, hospital record, sworn statement from a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection” (CPL 440.47[2][c] …).

Here, the defendant’s evidence in support of his motion included affidavits of his cousin and friend, as well as hospital records. Collectively, this evidence corroborated the defendant’s allegations that he was a victim of domestic violence subjected to substantial abuse inflicted by his girlfriend R.W. at the time that he committed the subject offense … . People v M.W., 2026 NY Slip Op 05815, Second Dept 10-7-26

Practice Point: Consult this decision for an explanation of the evidence a defendant must present to warrant a hearing on a motion vacate a sentence and for resentencing pursuant to the DVSJA.​

 

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THE JURY SHOULD HAVE BEEN CHARGED WITH THE “DEFENSE OF A GOOD CLAIM OF RIGHT” IN THIS PETIT LARCENY CASE; DEFENDANT HAD REMOVED A MEMORIAL TO A MURDER VICTIM WHICH HAD BEEN SET UP ON THE SIDEWALK IN FRONT OF DEFENDANT’S MOTHER’S HOUSE (SECOND DEPT). ​

The Second Department, vacating defendant’s petit larceny conviction and ordering a new trial, over a dissent, determined the jury should have been charged with the “defense of good claim of right.” The defendant was tried for criminally negligent homicide and petit larceny. A mistrial was declared on the criminally negligent homicide charge and she was convicted of petit larceny. Defendant subsequently pled guilty to criminally negligent homicide and then appealed the petit larceny conviction. The petit larceny charge alleged defendant dismantled and took away parts of a memorial for a murder victim which had been set up on the sidewalk in front of defendant’s mother’s house by the murder victim’s mother. It was the murder victim’s mother who was killed when she was struck by a vehicle driven by the defendant (the subject of the criminally negligent homicide conviction):

… Supreme Court improperly denied the defendant’s request to charge the jury with the defense of a good faith claim of right. “In determining whether to instruct a jury on a claimed defense, the court must view the evidence adduced at trial in the light most favorable to the defendant” … . “The charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it” … . “Where evidence exists upon which the jury could reasonably find that a particular defense applies, questions as to the credibility of the defendant’s testimony or inconsistences in the evidence presented do not disentitle the defendant to an instruction on the defense; those questions of fact are to be resolved by the jury” … . “If the evidence sufficiently supports a defense, a failure by the court to charge the jury constitutes reversible error” … .

… [W]e find that there was sufficient evidence to support the defendant’s good faith claim of right defense. * * * … [A]t trial, the People read the defendant’s grand jury testimony demonstrating that she had previously removed memorial items, including, inter alia, balloons and flowers without incident. Furthermore, at trial, a witness testified that he and the defendant, among others, had previously removed memorial items and no one ever asked where said items were and no one was ever arrested for removing same. This evidence reasonably supports the defendant’s claim of right defense. While there may have been evidence that contradicts the defendant’s claim of right defense, those are questions of fact the jury should have resolved … . People v Drago, 2026 NY Slip Op 05807, Second Dept 10-7-26

Practice Point: Consult this decision for a rare discussion of the “defense of a good claim of right” in the context of a petit larceny charge.

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION WHICH WAS NOT PRECEDED BY THE MIRANDA WARNINGS; DEFENDANT’S STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) defendant’s waiver of appeal was invalid, and (2) defendant’s statements made in response to questioning not preceded by the Miranda warnings should have been suppressed:

… [D]efendant was a suspect in the burglary of the victim’s home after defendant’s fingerprint was found on a bedroom window. Investigators learned that defendant was scheduled to meet his parole officer. After defendant walked into his parole officer’s office, three police investigators entered the office to question him. At no point during the questioning of defendant did the officers give defendant his Miranda warnings or inform defendant that he was free to leave. Furthermore, the investigator who testified at the suppression hearing could not answer definitively whether defendant would have violated parole if he had refused to talk with the investigators and left the office. Defendant met with his parole officer only after the investigators concluded their interview. Under these circumstances, a reasonable person would have thought that they were not free to leave during questioning … . Moreover, the questions by the investigators were accusatory in nature, rather than merely investigatory, and were designed to elicit an incriminating response … . We conclude that defendant was in custody and was subjected to interrogation. People v Clegg, 2026 NY Slip Op 05663, Fourth Dept 10-2-26

Practice Point: Here defendant was questioned by investigators when he showed up for a meeting with his parole officer. The investigators did not tell defendant he was free to leave and did not give him the Miranda warnings. The questioning was accusatory and designed to incriminate. Therefore defendant’s motion to suppress his statements to the investigators should have been granted.

 

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THE PARTIES IN THIS FAMILY OFFENSE PROCEEDING HAD NO DIRECT RELATIONSHIP, DEPRIVING FAMILY COURT OF JURISDICTION; THERE MUST BE AN “INTIMATE RELATIONSHIP” BETWEEN THE PARTIES TO CONFER JURISDICTION (SECOND DEPT).

The Second Department, reversing Family Court in this family offense proceeding, determined the petitioner and the appellant (the mother of petitioner’s boyfriend) have no direct relationship. Therefore Family Court did not have jurisdiction over the family offense proceeding (which requires an “intimate relationship”):

Pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain prescribed acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” … . “[M]embers of the same family or household” include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . Expressly excluded from the ambit of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” … . Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis, and the factors a court may consider include “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … .

Here, the parties have no direct relationship and are connected only through a third party, who is the petitioner’s former boyfriend and the appellant’s son … . Additionally, the parties never resided together and their contact with one another was minimal and related only to a few visits between the appellant and the petitioner’s daughter … . Matter of Monahan v Zindman, 2026 NY Slip Op 05538, Second Dept 9-30-26

Practice Point: Here the parties in this family offense proceeding, petitioner and petitioner’s boyfriend’s mother, had no direct relationship. To confer jurisdiction to Family Court in a family offense matter, the parties must have an “intimate relationship.”

 

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IN DENYING THE STATE POLICE’S REQUEST FOR AN EXTREME RISK PROTECTION ORDER (ERPO) AGAINST THE 18-YEAR-OLD RESPONDENT, THE JUDGE FOCUSED ON THE ABSENCE OF EVIDENCE RESPONDENT HAD ACCESS TO FIREARMS TO THE EXCLUSION OF EVIDENCE RESPONDENT POSED A RISK OF SERIOUS HARM TO HIMSELF OR OTHERS; NEW HEARING ORDERED (THIRD DEPT). ​

The Third Department, reversing Supreme Court and remitting the matter for a new hearing, determined the judge hearing the State Police’s application for an “extreme risk protection order (ERPO) against the 18-year-old respondent did not apply the correct criteria in denying the request. Supreme Court erroneously focused on the lack of evidence the respondent had access to a firearm to the exclusion of evidence respondent posed a risk of serious harm to himself or others:

… CPLR article 63-A establishes a procedure by which a court may temporarily restrict a person’s access to firearms where that person has been judicially determined to pose a risk of serious harm to themself or others (see CPLR 6340 [1]; 6342, 6343). The purpose of the statutory scheme is “to prevent individuals from accessing firearms, rifles, and shotguns who have been deemed, through judicial process, likely to engage in conduct that would result in serious harm to themselves or others” … . Upon application, the court may first issue a temporary ERPO upon a finding of probable cause to believe that “the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others” (CPLR 6342 [1]). Where, as here, a temporary ERPO is denied, the court must nevertheless conduct a hearing on the application for a final ERPO (see CPLR 6342 [5]). At that hearing, the petitioner bears the burden to establish, by clear and convincing evidence, “that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others,” as defined in Mental Hygiene Law § 9.39 (a) (CPLR 6343 [2]). 

In making that determination, the court must consider the eight factors enumerated in CPLR 6342 (2), together with any other relevant circumstances (see CPLR 6343 [2] …). The statutory factors include, among other things, acts of the respondent involving “a threat or act of violence or use of physical force directed toward self, the petitioner, or another person” (CPLR 6342 [2] [a]). Significantly, only three of the eight enumerated factors expressly concern a weapon or firearm (see CPLR 6342 [2] [c], [d], [g]). Thus, nothing in the statutory framework requires proof that the threatened or anticipated physical harm will be accomplished with a firearm, nor does it make a respondent’s existing possession of or access to a firearm a prerequisite to issuance of an ERPO. Indeed, the Legislature’s express reference to firearms in certain statutory factors, while omitting any such limitation from the governing likelihood-of-serious-harm standard and the general threat-of-violence factor, demonstrates that no such additional requirement may properly be engrafted onto the statute … .

The record reflects that Supreme Court nevertheless imposed such a requirement. Matter of New York State Police v Owen WW., 2026 NY Slip Op 05452, Third Dept 9-24-26

Practice Point: Consult this decision for insight into the procedure and criteria for determining an application for an extreme risk protection order (ERPO).

 

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WHERE A COURT’S DETERMINATION TO ENHANCE A DEFENDANT’S SENTENCE IS BASED SOLELY ON CALCULATIONS DRAWN FROM CERTIFIED PUBLIC RECORDS OF DEFENDANT’S PRIOR INCARCERATION, SENTENCE ENHANCEMENT CAN BE IMPOSED BY A JUDGE (AS OPPOSED TO A JURY) (FIRST DEPT).

The First Department, reversing Supreme Court, determined the question whether periods of incarceration which tolled the look-back period for enhancement of defendant’s sentence can be determined by a judge, as opposed to a jury:

The court granted defendant’s CPL 440.20 motion and concluded that the initial predicate statement was facially insufficient and that, pursuant to Erlinger [602 US 821], tolling determinations must be made by a jury. The court held that it could “neither determine, nor convene a jury to determine[,] that defendant was previously incarcerated at a particular time and place in an effort to enhance his sentencing.” * * *

​Defendant moved under CPL 440.20 to set aside the persistent violent felony offender sentence, arguing that the predicate felony statement was facially insufficient because it omitted periods of incarceration necessary to toll the statutory ten-year lookback period. Defendant contended that, under Erlinger, a jury was required to make the factual determination of whether any tolling finding would bring his prior conviction within the lookback window. * * *

As this Court found in People v Young (…2026 NY Slip Op 02883 […2026]), Erlinger does not apply to the tolling protocol contained in New York’s predicate felony sentencing statutes. These involve a “rote arithmetic calculation to be made based on certified public records” … . Such objective determinations fall within the narrow Almendarez-Torres exception permitting judicial determination of “the fact of a prior conviction” and associated ministerial facts such as dates.

… [T]he sentencing court erred in holding that tolling findings must be made by a jury and that it therefore could not sentence defendant as a persistent violent felony offender. As in Young, the tolling determination at issue required the court to review official admission and release records as well as calculate the periods during which defendant was confined. This administrative determination does not implicate the Sixth Amendment under Erlinger but rather falls within the Almendarez-Torres exception. People v Sabater, 2026 NY Slip Op 05459, First Dept 9-24-26

Practice Point: Where sentence enhancement is based solely on certified public records of prior incarceration, there is no requirement that a jury, as opposed to the judge, make the enhancement determination.

 

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ALTHOUGH THE POLICE HAD PROBABLE CAUSE TO ARREST AFTER WITNESSING HAND-TO-HAND EXCHANGES, THEY DID NOT INTEND TO ARREST DEFENDANT BECAUSE THE BUYERS WERE NOT APPREHENDED; THEREFORE THE SEARCHES OF DEFENDANT’S PERSON WERE NOT VALID SEARCHES INCIDENT TO ARREST; SUPPRESSION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to suppress the firearm, knife and phone found in a search of defendant’s person should have been granted. The police witnessed defendant make “hand-to-hand” exchanges of a small object for money. At the street stop, the officers did not intend to arrest the defendant because the buyers were not apprehended. The officers intended to issue a disorderly conduct summons. But when defendant said he had no identification, the officers decided to take him to the precinct. The searches of defendant’s person took place before and after transport to the precinct:

… [T]he officers had an established intention not to arrest for potential drug charges. With this intention not to arrest for potential drug charges established, such a basis for the arrest is properly considered in the manner of the potential driving while intoxicated charge in People v Reid (24 NY3d 615, 618-619 [2014])—that is, a charge for which facts known to the arresting officers would have supported a lawful arrest and search incident thereto but for record-demonstrated affirmative lack of intent to arrest on such a basis at the time of the search … . * * * [I]n the absence of the alleged disorderly conduct violation, the officers’ search would have been unlawful for reasoning identical to that in Reid … .

… [T]he motion court denied defendant’s suppression motion on the ground that defendant was properly arrested for disorderly conduct (Penal Law § 240.20) based on evidence that he was making “unreasonable noise” with the portable speaker he wore around his neck. On appeal, the People do not contend that the arrest was lawful on this basis, nor do they argue that defendant’s arrest was permitted based on any failure of defendant to identify himself under CPL 150.20(1)(b)(iii). People v Fulladosa, 2026 NY Slip Op 05458, First Dept 9-24-26

Practice Point: If the police do not intend to arrest a defendant despite the existence of probable cause, any search of the defendant’s person cannot be justified as a search incident to arrest.

 

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THE CHARGES STEMMED FROM AN ARMED CONFRONTATION WITH POLICE OFFICERS; A PROSPECTIVE JUROR INDICATED SHE “WOULD PROBABLY RELATE TO THE POLICE OFFICERS;” THE DENIAL OF THE DEFENSE CHALLENGE TO THE JUROR REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT). ​

The Third Department, reversing the judgment of conviction and ordering a new trial, determined the defense challenge to a prospective juror should have been granted:

The trial evidence established that officers with the Hudson Police Department responded to a residence regarding a possible domestic incident. Upon their arrival, the officers announced themselves and knocked on the door for approximately five minutes before the door was eventually opened and they were permitted entry. Two officers entered the single-bedroom apartment while two others remained outside. One of the officers inside the apartment then came upon the bedroom where defendant was wielding a knife, which he had raised above his head in the direction of that officer. The officer, who was in uniform and visible to defendant, drew his service weapon and directed defendant to drop the knife multiple times before defendant ultimately did so. Defendant was then placed into custody with extreme difficulty. This chain of events was echoed by the three other officers present during the underlying events. * * *

After acknowledging close relationships with several individuals in law enforcement, the prospective juror expressed that, although she “would like to think [she] can be fair,” she “would probably relate to the [law enforcement] victims.” While “words like ‘think’ or ‘try’ are not talismanic words that automatically make a statement equivocal” … , the prospective juror continued that she “hope[d] that [she] could still be fair.” Altogether, these equivocal statements raised a clear question as to her ability to remain impartial and, therefore, could only be remedied by an unequivocal statement of impartiality … . However, when pressed by defense counsel as to whether she could be fair, the prospective juror failed to directly address the issue and, in fact, seemed to further express her own bias. County Court did not then attempt to rehabilitate the prospective juror … and, as a result, her prior statements of partiality were not remedied … . Under these circumstances we find disqualification to have been required. Thus, because defendant exhausted his peremptory challenges before jury selection was complete, a new trial is necessary … . People v Edmunds, 2026 NY Slip Op 05442, Third Dept 9-23-26

Practice Point: Consult this decision for insight into the inquiry required when a prospective juror indicates a bias in favor of law enforcement.