You are here: / Criminal Law
, ,

THE MAJORITY DETERMINED THE PEOPLE DID NOT EXERCISE DUE DILIGENCE IN LOCATING REQUESTED DISCOVERY MATERIALS; THE INDICTMENT WAS PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS; A TWO-JUSTICE DISSENT ARGUED THE TIME WHEN THE OMNIBUS MOTIONS WERE UNDER CONSIDERATION SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, affirmed the dismissal of the indictment on speedy trial grounds. The dissenting justices agreed that the certificate of compliance was invalid, but argued the time that the defense omnibus motions were under consideration should not have been charged to the People:

… [T]he People contend that the court erred in determining that they violated their initial discovery obligations by failing to disclose the police report and body-worn camera footage relating to a welfare check of two of defendant’s children conducted by police officers two days after the alleged assault, inasmuch as they acted in good faith and with due diligence in an attempt to recover the report and footage. We reject that contention. * * *

… [D]espite being aware of the welfare check, which directly related to an issue upon which they presented testimony at the grand jury proceeding, the People failed to undertake the requisite efforts to ascertain the existence of, and obtain, the police report and body-worn camera footage, sending only a single letter to the police department that had conducted the welfare check and failing to follow up. We conclude under the circumstances presented here that the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the initial COC [certificate of compliance] and, thus, the court properly determined that the initial COC was improper and struck the statement of readiness as illusory … .

From the dissent:

… [W]e agree with the majority’s conclusion that the certificate of compliance in this case was invalid … , we cannot agree with the majority’s further conclusion that the People could be charged with more than six months of speedy trial time while defendant’s omnibus motion remained pending. In our view, it cannot be disputed that the omnibus motion remained pending before Supreme Court, i.e., “under consideration” (CPL 30.30 [4] [a]), at least in part, during the relevant time frame inasmuch as the portion of the motion seeking to compel production of certain materials pertaining to a welfare check … was neither decided by the court nor withdrawn by defendant before defendant moved to dismiss the indictment. Because we conclude that defendant’s omnibus motion remained pending before the court until defendant moved to dismiss the indictment on speedy trial grounds, we further conclude that all of the time that elapsed during that period was excludable, and that the People could not be charged with more than six months of statutory speedy trial time as a result … . People v Ernst, 2025 NY Slip Op 04329, Fourth Dept 7-25-25

Practice Point: Consult this decision for a discussion of the meaning of “due diligence” in the context of the People’s response to discovery demands.

 

,

THE MAJORITY HELD THAT DEFENDANT’S FLIGHT PROVIDED REASONABLE SUSPICION OF CRIMINALITY JUSTIFYING PURSUIT IN THIS STREET STOP SCENARIO; THE DISSENT ARGUED FLIGHT ALONE DURING A LEVEL TWO ENCOUNTER DOES NOT JUSTIFY PURSUIT (FOURTH DEPT).

The Fourth Department, after a detailed analysis of the De Bour criteria for a street stop, determined the initial encounter with defendant was lawful, the request for consent to frisk the defendant was lawful, and defendant’s flight provided reasonable suspicion of criminality justifying pursuit. The dissent agued the information available to the police never provided more than a level two right to inquire:

From the dissent:

I respectfully dissent inasmuch as I conclude that the pursuit of defendant was unlawful. At the time the two officers in question approached defendant, they mistakenly believed that they could properly detain defendant. The information they had before them, a general description of a suspect, gave them, as the majority agrees, a level two right to inquire … . In other words, defendant, at the time the officers approached him, had the right to be let alone.

The majority concludes that the degree of suspicion ripened from founded suspicion of criminality to reasonable suspicion upon defendant’s flight, thereby justifying the officers’ pursuit. ” ‘Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry’ ” … . A level two founded suspicion of criminality plus flight cannot equate to level three reasonable suspicion or else a defendant’s right to be let alone during a level two encounter will be rendered utterly meaningless. In my view, the majority ignores binding New York jurisprudence on this point in favor of a standard that erodes the rights that individuals maintain in a level two encounter. As the Court of Appeals recently reiterated, “an individual’s flight from a level one or two police encounter, without more, does not provide the reasonable suspicion necessary to pursue them” … , and defendant, during the lawful level two encounter, and even upon the officers’ requests and his momentary acquiescence, retained his “right to be let alone and refuse to respond to police inquiry” … . People v Smith, 2025 NY Slip Op 04317, Fourth Dept 7-25-25

Practice Point: Consult this decision and the dissent for insight into when a defendant’s flight during a level two street stop will justify police pursuit.

 

,

THE MAJORITY CONCLUDED THE QUESTIONING OF DEFENDANT IN HIS BACKYARD AND AT THE HOSPITAL WAS INVESTIGATORY AND DID NOT REQUIRE THE MIRANDA WARNINGS; THERE WAS A DETAILED, FACT-SPECIFIC DISSENT (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, determined the questioning of defendant in his backyard and at the hospital constituted “a noncustodial investigatory inquiry” for which the Miranda warnings were not required. A comprehensive and detailed dissent argued the questioning was in fact “custodial” and the need for the Miranda warnings was triggered:

It is well settled that Miranda warnings must be given when a defendant is subject to custodial interrogation … . “In determining whether suppression is required, the court ‘should consider: (1) the amount of time the defendant spent with the police, (2) whether [defendant’s] freedom of action was restricted in any significant manner, (3) the location and atmosphere in which the defendant was questioned, (4) the degree of cooperation exhibited by the defendant, (5) whether [the defendant] was apprised of [their] constitutional rights, and (6) whether the questioning was investigatory or accusatory in nature’ ” … . Although no Miranda warnings were given to defendant while in his backyard or at the hospital, we conclude upon our review of the relevant factors that, under the circumstances here, the questioning by the police officers in each instance “constituted a noncustodial investigatory inquiry for which Miranda warnings were not required” … .

From the dissent:

In my view, each and every factor in determining whether defendant was in custody for Miranda purposes weighs in defendant’s favor. First, defendant was with the police in his backyard for almost an hour … . Second, defendant’s freedom of action, notwithstanding his leg injury, was restricted in a significant manner from the inception of the encounter. The encounter started with police officers yelling at defendant not to move, to get on the ground, and to let the officers see his hands at all times … . Moreover, defendant was informed multiple times that nothing would happen until the officers found the gun … . Next, the atmosphere in which defendant was questioned was highly intrusive because his backyard was full of officers searching for a gun … . It is apparent from the body camera footage that defendant did not cooperate with the officers because he never told them where the gun was, despite repeated accusatory questioning on the topic … . Despite the above, defendant was not advised of his Miranda warnings, and the officers’ questions to defendant were not merely investigatory in nature … . People v Casiano, 2025 NY Slip Op 04316, Fourth Dept 7-25-25

Practice Point: Consult the dissent for some insight into when questioning by the police crosses the line from an investigatory inquiry to a custodial interrogation.

 

,

AFTER A VALID TRAFFIC STOP, ASKING DEFENDANT TO STEP OUT OF THE CAR AND PLACING DEFENDANT IN HANDCUFFS IN THE ABSENCE OF ANY VALID “SAFETY REASONS” CONSTITUTED AN ILLEGAL DETENTION WARRANTING SUPPRESSION OF DEFENDANT’S STATEMENTS (FOURTH DEPT).

The Fourth Department, reversing County Court, suppressing defendant’s statements and ordering a new trial, determined the statements were the fruit of an unlawful detention at a traffic stop. A two-justice dissent argued the unlawful detention lasted less than a minute before the police had probable cause to arrest, and, therefore, a hearing should be held to determine whether the spontaneous statements made by the defendant at the police station were the fruit of the poisonous tree:

The Troopers … directed the driver and defendant to exit the vehicle so the Troopers could conduct an inventory search. Pursuant to standard procedure, the driver and defendant were placed in handcuffs. No other basis for placing the driver and defendant in handcuffs was offered by the People, and at the suppression hearing one of the Troopers testified that, in the City of Rochester, “for our safety reasons, every single time we have somebody exit the vehicle, we put them in handcuffs.” Before the inventory search was conducted, the vehicle’s driver began acting nervous, and when one of the Troopers inquired about her behavior, the driver stated that there was a gun in a bag in the vehicle. The Troopers retrieved and searched the bag, which contained a loaded handgun. Defendant and the driver were then arrested and taken to the State Police station for processing, where defendant began talking to one of the Troopers and made spontaneous statements indicating that the gun belonged to him. * * *

We agree with defendant that by placing him in handcuffs after directing him to exit the vehicle, the Troopers transformed the traffic stop into a “forcible stop and detention” … , which “must be justified by some additional circumstances, such as a threat of evasive conduct . . . ; a need to transport the defendant for a showup procedure . . . ; a fear that the suspect may interfere with the execution of a search warrant . . . ; or a concern for officer safety” … . The People did not present evidence at the suppression hearing of ” ‘articulable facts’ from the encounter to establish reasonable suspicion that defendant posed any danger to the officers” … .

From the dissent:

As the majority concludes, two New York State Troopers unlawfully detained defendant in handcuffs following the traffic stop. At the time, the Troopers had no reason to believe that either defendant or the driver had committed a crime. But the unlawful detention lasted less than a minute before the driver informed the Troopers that there was a gun in the vehicle, thus providing the Troopers with probable cause to arrest both the driver and defendant for criminal possession of a weapon. Thus, at the time he made his statements, defendant was lawfully under arrest. People v Hernandez, 2025 NY Slip Op 04315, Fourth Dept 7-25-25

Practice Point: Apparently the State Police consider the City of Rochester a high crime area and it is standard procedure for them, after a traffic stop in the city, to place the occupants of the car in handcuffs for “safety reasons.” The Fourth Department held that standard procedure constitutes an illegal detention.

 

,

SUPREME COURT PROPERLY CONSOLIDATED TWO INDICTMENTS, CRITERIA EXPLAINED; THERE WAS A COMPREHENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, affirming the convictions, determined Supreme Court properly consolidated two indictments. A comprehensive dissent disagreed:

… [T]he court properly exercised its discretion in granting consolidation pursuant to CPL 200.20 (2) (b) because there is significant common evidence supporting both indictments. Most importantly, the same weapon was involved in the events underlying both indictments, and—indeed—is the critical piece of evidence supporting both … . * * *

… [T]he court properly exercised its discretion in granting consolidation of the indictments on the additional basis that they charged offenses that are “defined by the same or similar statutory provisions” (CPL 200.20 [2] [c]). * * *

In opposing joinder, defendant failed to meet the statutory standard of showing that he had “a genuine need to refrain from testifying . . . [to] satisf[y] the court that the risk of prejudice is substantial” (CPL 200.20 [3] [b]). * * * …[D]efendant failed to demonstrate “that he had ‘both important testimony to give concerning one [offense] and a genuine need to refrain from testifying on the other’ ” … . People v Spinks, 2025 NY Slip Op 04303, Fourth Dept 7-25-25

Practice Point: Consult this decision for insight into the criteria for consolidating two indictments, fleshed out by a comprehensive, detailed dissent.

 

, ,

DEFENDANT MOVED TO VACATE HIS CONVICTION ARGUING HIS ATTORNEY WAS INEFFECTIVE FOR WAIVING AN INTERPRETER; COUNTY COURT SHOULD HAVE HELD A HEARING ON THE MOTION; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent. determined County Court should have held a hearing on defendant’s motion to vacate his conviction. Defendant argued defense attorney’s waiver of an interpreter constituted ineffective assistance. Defendant’s ineffective-assistance argument on direct appeal had been rejected, but the motion to vacate properly raised the waiver of an interpreter as a new issue:

We agree with defendant that County Court erred in its determination that defendant’s claim that he was denied effective assistance of counsel was procedurally barred pursuant to CPL 440.10 (2) (a) … . Although on direct appeal we rejected defendant’s contention that he was denied effective assistance of counsel … , we conclude that his present contentions are properly raised by way of a CPL 440.10 motion because they concern matters outside the record that was before us on his direct appeal … . Defendant’s motion contained sufficient evidence, including “sworn allegations . . by . . . defendant or by another person or persons” (CPL 440.30 [1] [a]), demonstrating that a hearing is necessary to determine whether trial counsel’s waiver of an interpreter for defendant adversely affected defendant’s right to meaningfully participate in his own defense … . Specifically, defendant submitted evidence that, although he was able to navigate conversational topics in English, he required the assistance of an interpreter when discussing more technical or esoteric topics and that he had in fact utilized the assistance of an interpreter at all but one court appearance prior to his trial counsel waiving such services for defendant just prior to trial. “Although the evidence in support of the motion does not ‘conclusively substantiate[ ] by unquestionable documentary proof’ that vacatur is required due to a violation of defendant’s right to [effective assistance of] counsel . . . , it is nonetheless suggestive of that fact” … . Defendant is therefore entitled to a hearing “on his entire claim of ineffective assistance of counsel inasmuch as such a claim constitutes a single, unified claim that must be assessed in totality” … . People v Anwar, 2025 NY Slip Op 04301, Fourth Dept 7-25-25

Practice Point: This decision gives some insight into when the court must conduct a hearing on a motion to vacate a conviction. The discussion is enriched by a two-justice dissent.

 

, , ,

EXCLUDING A SPECTATOR FROM THE TRIAL BECAUSE HE WAS SLEEPING DEPRIVED DEFENDANT OF HIS RIGHT TO A PUBLIC TRIAL; THE CONSTITUTIONAL ERROR IS NOT SUBJECT TO A HARMLESS ERROR ANALYSIS; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial, determined the judge’s excluding a spectator from defendant’s trial violated the defendant’s right to a public trial. The spectator, apparently a friend of the defendant, had been asleep during the trial. He was excluded solely on that ground:

While trial courts have “inherent discretionary power to exclude members of the public from the courtroom” … , that discretion “must be exercised only when unusual circumstances necessitate it” … . “In sum, ‘an affirmative act by the trial court excluding persons from the courtroom’ without lawful justification constitutes a violation of the defendant’s right to a public trial” … . “A violation of the right to an open trial is not subject to harmless error analysis and a per se rule of reversal irrespective of prejudice is the only realistic means to implement this important constitutional guarantee” … .

Here, after the first day of testimony had concluded and jurors had been dismissed for the day, the Supreme Court excluded a spectator from the courtroom for sleeping, which the court noted was “disrespectful” and “distracting to the jurors.” The court told the spectator … he was “excluded from this courtroom for the rest of this trial” and was “not to return” to the courtroom. * * *

The record demonstrates that the Supreme Court did not sufficiently consider whether less drastic measures could have addressed the spectator’s behavior, such as warning the spectator or requesting that the spectator alter his demeanor in the courtroom … . The court’s statement the next day that the spectator was no longer excluded from the courtroom was insufficient to remedy the court’s error. People v White, 2025 NY Slip Op 04193, Second Dept 7-16-25

Practice Point: A judge has to have a good reason for excluding a spectator from a trial. The fact that the spectator had slept during the trial was not enough. Exclusion of spectators deprives a defendant of the constitutional right to a public trial.

, ,

THE JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s kidnapping first degree conviction and ordering a new trial on that count, determined the trial judge should have given the jury an instruction on unlawful imprisonment second degree as a lesser included offense. Kidnapping first degree requires restraint for more than 12 hours. There was a reasonable view of the evidence which supported the restraint was less than 12 hours:

“A defendant is entitled to a lesser included offense charge upon request when (1) it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” … . Inasmuch as there is no dispute regarding the first prong, we turn our focus to the second. In so doing, “we must view the evidence in the light most favorable to the defendant” … . “It is only where there is no possible view of the facts by which the jury could find [the defendant guilty of] a lesser [included offense] that [a] refusal [to submit that offense] is justified” … . In light of the evidence relied upon by defendant, as summarized in our above weight of the evidence analysis, we agree with defendant that there is a reasonable view of the evidence that he committed the lesser offense by restraining the victim, but not for more than 12 hours as required to commit the greater offense. People v Akins, 2025 NY Slip Op 04122, Third Dept 7-10-25

Practice Point: Where a reasonable view of the evidence supports a lesser included offense, it is reversible error to refuse to instruct the jury on it.

 

, ,

HERE DEFENDANTS SOUGHT TO USE PLAINTIFF’S INDICTMENT AND PLEA TRANSCRIPT IN THEIR DEFENSE OF PLAINTIFF’S CIVIL ACTION; THE ISSUE IS WHETHER THOSE RECORDS WERE SUBJECT TO THE SEALING ORDER ISSUED BY COUNTY COURT; IF THE RECORDS WERE COURT RECORDS AND PROCURED FROM THE COURT, THE SEALING ORDER WOULD NOT EXTEND TO THEM; IF THE RECORDS WERE PROCURED FROM LAW ENFORCEMENT SOURCES, THE SEALING ORDER APPLIES; MATTER REMITTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined that whether certain records associated with plaintiff’s criminal action, including the indictment and plea transcript, were “sealed” and thus not accessible by the defendants depended on where the defendants procured them. The sealing order did not extend to “court records” as opposed to records kept by the police and prosecutors:

We must … decide whether CPL 160.55 i… encompasses the content that plaintiff seeks to have excluded from trial. After plaintiff entered a guilty plea to disorderly conduct in the criminal action, County Court issued a sealing order pursuant to CPL 160.55, which applies when an action has been terminated by a conviction of certain violations, including disorderly conduct. * * *

A careful comparison of the language used in CPL 160.50 and 160.55 leads us to agree with defendants’ contention that CPL 160.55 does not extend to court records. Under CPL 160.55 (1) (c), once notified of a qualifying violation conviction, the enumerated criminal justice entities must seal “all official records and papers relating to the arrest or prosecution” in their possession. By comparison, CPL 160.50 (1) provides that, when an action has been terminated in favor of the accused, unless the court requires otherwise, “the record of [an] action or proceeding shall be sealed” and notification of such termination and sealing shall be sent by the clerk of the court to the “the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies” … . Upon receipt thereof, “all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office shall be sealed and not made available to any person or public or private agency” (CPL 160.50 [1] [c] … . By its plain terms, CPL 160.50 seals official court records pertaining to the arrest and prosecution, whereas CPL 160.55 omits that express sealing … . * * *

We are mindful that the record does not reveal how defendants obtained copies of the indictment and combined plea/sentencing transcript. To the extent defendants obtained these documents from the official court file maintained by County Court, they would not be subject to the sealing order issued pursuant to CPL 160.55. However, if these documents were obtained from the files of “the division of criminal justice services, police agency, or prosecutor’s office” (CPL 160.55 [1] [c]), they would be subject to the sealing order.  … [P]laintiff did not waive the privilege that is afforded to these documents in the event they were obtained from one of the aforementioned law enforcement entities. Given that the record is not sufficiently developed on the issue of how these records were obtained, we must reverse so much of Supreme Court’s order as denied plaintiff’s motion in limine as it pertains to the indictment and plea/sentencing transcript and remit to Supreme Court for further proceedings on the matter. Kokoska v Joe Tahan’s Furniture Liquidation Ctrs., Inc., 2025 NY Slip Op 04130, Third Dept 7-10-25

Practice Point: Pursuant to Criminal Procedure Law section 160.55, a sealing order does not extend to court records, as opposed to records kept by law enforcement and prosecutors. Here there was a question whether the defendants procured the indictment and plea transcript from the court. If so, the sealing order did not apply to them.

 

,

A CANINE SNIFF OF A PERSON IS A SEARCH AND REQUIRES PROBABLE CAUSE TO BELIEVE THE SUBJECT HAS COMMITTED A CRIME, THEREBY TRIGGERING THE NECESSITY FOR A SEARCH WARRANT OR AN EXCEPTION TO THE WARRANT REQUIREMENT (THIRD DEPT). ​

The Third Department, reversing County Court and remitting the matter, in a full-fledged opinion by Justice Ceresia, determined probable cause to believe a crime has been committed is the proper standard for a canine sniff of a person. Here defendant was asked to step out of his vehicle. The canine put his nose in defendant’s groin/buttocks area and alerted for the presence of narcotics:

… [A] canine sniff of the body is far more intrusive than that of a vehicle exterior or common hallway, and an individual has a correspondingly greater expectation of privacy in one’s own body than in those settings. Indeed, when it comes to canine sniff searches, it would be difficult to imagine one more intrusive or involving a more significant privacy right than the one at issue here. Accordingly, we conclude that the serious “intrusion on personal privacy, security, and dignity” that accompanies a canine sniff of the body can only be justified at DeBour level 4 — namely, upon probable cause to believe that the target of the sniff search has committed a crime … .

… [G]iven the fact that County Court only evaluated the evidence under the lesser standard of reasonable suspicion, we are constrained to remit this case to that court for a determination of whether the police had probable cause to perform the canine sniff search of defendant’s body …thereby triggering the necessity of either a search warrant or an exception to the warrant requirement … .  People v Butler, 2025 NY Slip Op 04052, Third Dept 7-3-25

Practice Point: It is hard to believe the law on this topic is just now being settled. A canine sniff of a person is a search requiring probable cause to believe the subject has committed a crime, thereby triggering the necessity for a search warrant or an exception to the warrant requirement.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy