Here, the consent of the People to the plea agreement was not required because the charges remained as presented (see CPL 220.10 [2]) and, thus, the People were not in a position to demand a waiver of defendant’s right to appeal nor was such a waiver—or any other plea condition—necessary to secure the People’s consent … . It follows, then, that the court’s demand of an appeal waiver, particularly as viewed in light of defendant’s expressed desire to seek appellate review of the court’s suppression ruling, “gives rise to the appearance that the court [was] seeking to shield its decisions from appellate review or otherwise act[ing] as an advocate for the People” and, therefore, “we must look to the record as a whole to determine whether there is a distinct and proper reason for the court’s demand” … . * * *

Upon our review of the record …, including defense counsel’s unrefuted assertion that the court unilaterally demanded an appeal waiver that would foreclose appellate review of its determination of defendant’s suppression motion as a condition of the court-initiated plea agreement, we conclude that it is not apparent that the court had a distinct and proper reason to demand that waiver of defendant’s right to appeal. Therefore, the waiver of the right to appeal is invalid and does not preclude our review of defendant’s contentions. * * *

… [T]he anonymous 911 phone tip generated only a belief that criminal activity was afoot and, as such, limited the officers’ permissible action to a level two common-law right of inquiry … . * * *

Inasmuch as the People failed to present evidence at the suppression hearing establishing defendant’s voluntary consent to the search of his person, all physical evidence seized as a result of that consent “should have been suppressed” … . People v Turner, 2026 NY Slip Op 02557, Fourth Dept 4-24-26

Practice Point: Where the defendant pleads to the charges and there is no need for the People’s consent, the sentencing judge must have a distinct and proper reason to demand that defendant waive his right to appeal, absent here.

Even assuming, arguendo, that either the investigator or the searching officer could have arrested defendant prior to or contemporaneously with the search of his person, we note that “[a] search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not” … . A lawful search incident to arrest “requires proof that, at the time of the search, an arrest has already occurred or is about to occur” … . The search must be “substantially contemporaneous” to an actual arrest “so as to constitute one event” … . Under the circumstances of this case, we conclude that there was no actual arrest of defendant justifying the search, inasmuch as the only officer who was purported to have actually placed defendant under arrest prior to or contemporaneously with the search explicitly informed defendant that he was not under arrest at that time … . The court upheld the search as a lawful search incident to an arrest, and thus we are precluded from affirming on any alternative basis … . People v Moore, 2026 NY Slip Op 02508, Fourth Dept 4-24-26

Practice Point: If a search of defendant’s person is justified as a search incident to arrest, the defendant must, in fact, be arrested before the search.

Practice Point: Here the motion court upheld the search as a search incident to arrest; the appellate court cannot affirm on any alternative ground.

At arraignment, the People stated that while there had not yet been grand jury action, the parties had agreed to a pre-indictment plea bargain whereby the defendant would plead guilty to the misdemeanor count in satisfaction of all charges in exchange for a sentence of two years’ probation. With the People’s consent, Criminal Court purported to dismiss the two felony counts by crossing them off the felony complaint. The court did not adhere to the procedure set forth in CPL 180.50 for reducing felony charges, the People did not file a superseding accusatory instrument, and the defendant did not waive prosecution by information. He nonetheless pleaded guilty to the remaining misdemeanor count, and the court later imposed the bargained-for sentence. The defendant subsequently appealed the judgment of conviction, arguing that the felony complaint was jurisdictionally defective as to the count to which he pleaded due to the absence of any allegation that the firearm was operable. * * *

We agree with the defendant that the instrument to which he pleaded guilty did not meet the prima facie case requirement because it lacked any allegations of operability. As such, it was jurisdictionally defective and could not serve as the basis for his plea. Consequently, the case should be “restored to its pre-pleading status” (CPL 470.55 [2] …). The record reflects that the felony counts were dismissed when the parties informed the court of their agreed-upon disposition, and thus the purported dismissal is best understood as an integral component of the defendant’s plea. The pre-pleading posture therefore restores the felony complaint … . The defendant fails to identify a sufficient basis for dismissal of the original, pre-pleading felony complaint, and we therefore remit for further proceedings. People v Burgess, 2026 NY Slip Op 02438, CtApp 4-23-26

Practice Point: Consult this opinion for insight into the consequences of failing to follow the proper procedure for reducing felony charges as part of a negotiated plea to an information. Here the information was deemed jurisdictionally defective on appeal, the plea was vacated, and the felony charges were reinstated.

The issue on appeal is whether, as a condition of a negotiated plea agreement, a defendant may waive a Penal Law § 60.12 hearing to determine their eligibility for an alternative sentence under the Domestic Violence Survivors Justice Act (DVSJA). The Legislature designed the DVSJA’s alternative sentencing framework to remedy a systemic injustice of the criminal legal system. Specifically, the Legislature recognized that the standard sentencing scheme fails to adequately consider how domestic violence impacts a survivor defendant’s criminal conduct, and their potential for rehabilitation, resulting in harsh and unfair sentences for many survivors. The DVSJA, in Penal Law § 60.12, provides a survivor defendant with the opportunity to request a hearing to establish the impacts of domestic violence in their case and their eligibility for a lesser sentence that accords with the legislative purpose of fair and compassionate treatment of survivors.

Here, defendant N.H. requested a reduced sentence under the DVSJA sentencing framework or, in the alternative, a section 60.12 hearing to demonstrate her eligibility for such a sentence. The prosecution subsequently offered, and N.H. accepted, a plea bargain contingent on N.H.’s waiver of a section 60.12 hearing. We hold that section 60.12 hearings are not waivable as a condition of a plea agreement. People v N.H., 2026 NY Slip Op 02437, CtApp 4-23-26

Practice Point: A defendant eligible for a reduced sentence hearing pursuant to the Domestic Violence Survivors Justice Act cannot waive the hearing as a condition for a plea agreement.

The defendant contends that trial counsel was ineffective for failing to move to reopen the pretrial suppression hearing on the basis that an individual had testified, during the trial, that he had told the police that the voice of the alleged kidnapper, who the individual had heard speaking on the telephone, was “possibly” that of the defendant, and the individual also admitted to testifying before the grand jury that he identified the voice after being shown a photograph of the defendant. Whereas, the police testimony at the pretrial suppression hearing regarding the same individual’s identification of the defendant’s voice, which formed the basis for the defendant’s arrest, was more definitive and unequivocal, and did not involve the viewing of a photograph. We agree.

Courts have the discretion to reopen a suppression hearing based upon new facts, which could not have been discovered with reasonable diligence before the determination of the suppression motion, pertinent to the suppression issue … . These new facts need not establish a constitutional violation on their face, but must be facts that would either materially affect, or have affected, the earlier determination … . Here, where the reliability of a witness’s identification of the defendant’s voice as that of one of the perpetrators of the crime, which primarily formed the basis for the defendant’s arrest, was called into question in light of that witness’s trial testimony, an issue of fact was raised regarding whether there was probable cause for the defendant’s arrest … . Although motions to reopen suppression hearings are generally denied where the new facts proffered go only to the circumstances surrounding the defendant’s arrest, here, the defendant could not be presumed to know the basis of the communications or conduct between police, leading to his arrest … . The failure of trial counsel to move to reopen the suppression hearing on this ground was therefore both objectively unreasonable as well as prejudicial to the defendant … . Contrary to the People’s contention, this is not a case in which trial counsel’s error can be explained as part of any strategic design … . People v Clark, 2026 NY Slip Op 02414, Second Dept 4-22-26

Practice Point: Here trial testimony about the identification of defendant’s voice was not as definitive or unequivocal as the testimony at the suppression hearing raising a question whether there was probable cause for defendant’s arrest. Defense counsel was ineffective for failing to move to reopen the hearing. The matter was remitted for a reopened hearing.​

… [A] defendant seeking a dismissal based on a speedy trial violation may wish to accumulate as many chargeable days as possible. The facts here reinforce the wisdom of this approach. Defendant made his motion on the date trial was set to begin, eleven months after his arraignment, and alleged 326 days chargeable to the People. That motion contained 9 pages of detailed calculations of days and arguments about why each period should be charged to the People, including the days immediately leading up to the July 23 court date. The People for their part now claim that only 54 of those days were chargeable to them. In other words, every day counts—and many may be contested—in the speedy trial context, and the statute affords a defendant flexibility to decide when best in the time leading up to the start of trial to make a CPL 30.30 (1) (b) motion.

… [T]he People are entitled to a fair opportunity to prepare a response. * * * A court in receipt of such motion has discretion whether to proceed with trial and when to resolve the motion. While proceeding in this way may lead to inefficiencies … , such a result may in certain cases be necessary. The trial court is in the best position to determine when proceeding to trial is warranted to avoid inconvenience to witnesses and unnecessary delay. People v Roper, 2026 NY Slip Op 02365, CtApp 4-21-26

Practice Point: Here a 30.30 (speedy trial) motion was timely despite being made on the day of the trial. The argument that the motion was untimely because the “reasonable notice” provision in the statute was violated was rejected. The court can proceed with the trial and hear the motion later.​

… [W]e conclude that the three-year delay to retry defendant a fourth time was unjustified and violated his constitutional right to a speedy trial. … “[W]hile the greater the delay, the more likely the harm to the defendant, there is no specific length of time that automatically results in a due process violation … . Here, the delay was lengthy—more than three years and one month between the third and fourth trials, and 36 months between the third trial and when the prosecution declared readiness for the fourth trial. … The delay is even more stark when compared to the dramatically shorter time between the prior trials: six months between the first and second trials and eleven months between the second and third trials.

The “reason for the delay” factor is critical. Thus, in cases involving post-indictment delays, the prosecution’s “good faith will not insulate their decision to delay trial from judicial review on constitutional speedy trial grounds” … . “[O]nce having instituted the prosecution . . ., [the prosecution has] the obligation of advancing it unless there is a reasonable ground for delay” … . By the time of the delay preceding the fourth trial, defendant had already been indicted and tried three times. That indictment remained pending throughout the three-year delay. Accordingly, the prosecution had the obligation of advancing its case in the absence of a reasonable justification … .

A lengthy delay “demands close scrutiny of the other factors, especially the question of why the delay occurred” … . Here, the prosecution’s justifications for the delay lack record support and in any case are not persuasive. The prosecution’s claim that the delay was attributable to its consideration of defense counsel’s request for dismissal after three mistrials cannot, without more, account for the three-year delay. The prosecution did not provide any particular reasons for why its deliberations of whether to retry defendant took so long given its failure to obtain a conviction three times in a row on the murder and weapon possession charges. Nor did the prosecution assert that an internal “changing of the guard” impacted its ability to render a decision on whether to retry the case. People v Woods, 2026 NY Slip Op 02364, CtApp 4-22-26

Practice Point: Here defendant was convicted of murder and weapon possession at his fourth trial, There was a three-year delay between the last mistrial and the fourth trial. The delay violated defendant’s speedy trial rights. The charges were dismissed by the Court of Appeals.

Whether the People presented sufficient evidence of a communication under the fellow officer rule is a fact-specific question that requires examination of the record before the suppression court. Here, the People presented no direct evidence that prior to arresting the defendant, the arresting officers were aware of the I-card and relied upon it in effectuating the defendant’s arrest. The arresting officers did not testify at the suppression hearing, nor did the detective testify about the circumstances of the arrest. * * *

We conclude that the People failed to provide evidence sufficient to show a communication between the officers based on the I-card, and therefore failed to meet their burden at the suppression hearing to establish probable cause for the defendant’s arrest. Absent the requisite showing of probable cause, the defendant’s statement must be suppressed as the fruit of an unlawful arrest. People v Palacios, 2026 NY Slip Op 02360, CtApp 4-16-26

Practice Point: Here the required proof for the application of the “fellow officer” rule was not presented by the People. To prove the arrest was based on a “probable cause I-card” the People were required to show the arresting officer saw the I-card and relied on it. The arresting officer did not testify, so there was a failure of proof requiring suppression of the defendant’s statement.

… [W]e agree with defendant that the count of the indictment under which he was convicted was jurisdictionally defective and that the court should not have amended the indictment at the People’s request. While the jurisdictional requirements of an indictment count are ordinarily met by an allegation that the defendant “violated the terms of a specific statute designated by name and section” … , that rule does not apply where, as here, the statute at issue allows for commission under discrete subdivisions and there is no specific allegations regarding the subsection that the defendant allegedly violated … . The second count of the indictment charging defendant with criminal possession of a weapon in the third degree under Penal Law § 265.02(1), could be satisfied by proof that defendant committed the “bump-up” crime of fourth-degree criminal possession of a weapon (Penal Law 265.01) in one of four ways, without specifically alleging the provision that defendant violated. Further, the amendment had the effect of “curing . . . a failure . . . to charge or state an offense” or the “legal insufficiency of the factual allegations,” both of which are prohibited by CPL 200.70(2).

Accordingly, the judgment of conviction is vacated and the indictment dismissed. People v Jones, 2026 NY Slip Op 02214, First Dept 4-14-26

Practice Point: If the statute allows for commission of the offense under discrete subdivisions, the specific subdivision under which defendant is charged must be indicated in the indictment. Failure to indicate the subdivision is a jurisdictional defect which apparently cannot be cured by amendment.

… [P]rospective jurors were identified only by numbers and the record is devoid of proof that their names were ever provided to defendant, which materially heightens the risk of prejudice … . Additionally, County Court withheld prospective jurors’ names without making any findings on the record or articulating a case-specific justification for departing from the procedure mandated by CPL 270.15, explaining only that prospective juror identities were withheld “because of confidentiality.” The record does not reflect any concern regarding juror safety, intimidation or interference, nor any circumstances that would otherwise warrant the use of an anonymous jury … . Additionally, we are not persuaded by any of the reasons suggested by the People at oral argument. We thus exercise our interest of justice jurisdiction, reverse and remit for a new trial. People v Cassell, 2026 NY Slip Op 02173, Third Dept 4-9-26

Practice Point: Here the trial judge’s failure to place on the record the reasons for empaneling an anonymous jury required reversal and a new trial in the interest of justice.