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THE “EXTRAORDINARY CIRCUMSTANCES” WHICH WOULD JUSTIFY RETAINING THE 17-YEAR-OLD’S BURGLARY PROSECUTION IN COUNTY COURT WERE NOT DEMONSTRATED; THE CASE SHOULD HAVE BEEN TRANSFERRED TO FAMILY COURT; THE CRITERIA FOR RETENTION IN COUNTY COURT ARE EXPLAINED IN DEPTH (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Powers, determined the People did not demonstrate “extraordinary circumstances’ justifying retaining the 17-year-old defendant’s burglary case in County Court. The matter should have been transferred to Family Court:

… [W]e agree with the Second Department’s conclusion that the Legislature intended for adolescent offenders to be prosecuted in criminal court “only in the most exceptional cases” … . * * *

As alleged in the criminal complaint, defendant and the brother stood accused of entering the dwelling of the relative and stealing unsecured firearms, which they then sold. Markedly, the relative was not home at the time and they did not forcibly enter the home. Rather, defendant’s brother — who was a willing and able participant — utilized the garage door code he had been entrusted with and they entered the home together, without causing damage to or destruction of property. Defendant also did not go on to use the firearms in the commission of some other crime nor were the firearms used by another in the commission of a crime. Instead, the firearms were sold, and then located by law enforcement not long after the sales.

These facts do not present one of the “extremely rare and exceptional cases” as was contemplated by the Legislature in enacting this legislation. In view of the foregoing, the People failed to demonstrate extraordinary circumstances existed as required to retain the matter in County Court (Youth Part) under CPL 722.23 (1) (d) … . People v Aaron VV., 2025 NY Slip Op 05018, Third Dept 9-18-25

Practice Point: Consult this decision for an in-depth discussion of the criteria for retaining a 17-year-old’s prosecution in County Court, as opposed to transferring the case to Family Court.

 

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RENEW THE MOTION TO DISMISS THE INDICTMENT WHEN ADDITIONAL GRAND JURY TESTIMONY WAS RELEASED TO THE DEFENSE BECAUSE THE JUDGE HAD REVIEWED THE ENTIRE GRAND JURY MINUTES BEFORE DENYING THE MOTION; TWO-JUSTICE DISSENT ARGUED THE MOTION COURT WOULD HAVE BENEFITTED FROM ANOTHER ARGUMENT BASED ON THE NEWLY RELEASED EVIDENCE (FIRST DEPT).

The First Department, affirming defendant’s conviction over a two-justice dissent, determined defense counsel was not ineffective for failing to renew the defense motion to dismiss the indictment after additional grand jury testimony was released. The majority concluded there was no new evidence to support a motion to renew because the judge reviewed all the grand jury testimony before denying the motion to dismiss. The dissenters argued there was insufficient evidence defendant shared the intent of the shooter and the motion court would have benefitted from another argument where defense counsel raised the newly released grand jury evidence:

“There can be no denial of effective assistance of counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success” … . Defendant cannot demonstrate that a motion to renew would have had any likelihood of success because defendant had previously moved to dismiss the indictment and the court had denied the motion after conducting an in camera review of the grand jury minutes, which included the witness’s grand jury testimony that was subsequently provided to defendant’s counsel. Thus, the court had already determined that the evidence presented before the grand jury, including the witness’s testimony, established a legally sufficient prima facie case.

Moreover, a motion for renewal “must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made available to the court” … . Although the grand jury minutes were not available to defendant’s counsel at the time the motion to dismiss was filed, the court conducted a review of the complete grand jury minutes and then denied dismissal of the indictment. Consequently, there were no additional material facts upon which defendant’s counsel could have based a motion to renew, as the witness’s grand jury testimony was already known to the court in its entirety. Therefore, defendant’s counsel’s failure to file such a motion was insufficient to render his performance ineffective under both the state and federal standards … . People v Williams, 2025 NY Slip Op 05016, First Dept 9-18-25

Practice Point: Here the majority determined a motion to renew the motion to dismiss the indictment based on grand jury testimony released after the motion argument had little chance of success because the judge had reviewed all the grand jury evidence before denying the motion. The dissenters argued the judge would have benefitted from a second argument based on the newly released testimony, and therefore defense counsel was ineffective for failing move to renew.

 

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THE POLICE OFFICER’S WITNESSING THE EXCHANGE OF AN UNIDENTIFIED OBJECT PROVIDED PROBABLE CAUSE FOR A DRUG TRANSACTION ARREST; BECAUSE THE RECORD EVIDENCE SUPPORTED THE DENIAL OF SUPPRESSION, THE MIXED QUESTION OF LAW AND FACT WAS BEYOND FURTHER REVIEW BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, affirming Supreme Court’s denial of the suppression motion, determined there was sufficient evidence in the record to support the motion court’s ruling. Therefore the mixed question of law and fact could not be reviewed further by the Court of Appeals. The issue was whether witnessing the exchange of an unidentified object provided probable cause to arrest for a drug transaction:​

The “factors relevant to assessing probable cause include the exchange of currency; whether the particular community has a high incidence of drug trafficking; the police officer’s experience and training in drug investigations; and any additional evidence of furtive . . . behavior on the part of the participants” … . Contrary to defendant’s contention, the absence of a “telltale sign” of a drug transaction is not fatal to a finding of probable cause. As we have explained, “a ‘telltale sign’ of narcotics strongly suggests an illicit drug transaction,” but it is not “an indispensable prerequisite to probable cause” … . Probable cause may also “be found on the basis of ‘indicia of a drug transaction’ known to ‘an experienced officer trained in the investigation and detection of narcotics,’ which include ‘handling an unidentified object in a manner typical of a drug sale'” … .

The testifying officer had formal training and experience in observing narcotics transactions, and he and his partners were stationed in an area known for drug-related activity. … [I]n the six months prior to defendant’s arrest, the testifying officer had made about ten narcotics-related arrests within two blocks of the motel. The officers also saw defendant “engage in [ ] behavior consistent with that of a narcotics seller” … , including nervous glancing, reaching into his waistband without looking down, and two separate interactions with the same woman, each involving an exchange of an object. Although the officers did not identify the object the woman acquired during the second interaction until after defendant’s arrest, the woman’s clenched fist and rapid departure indicated her desire to conceal it. People v Tapia, 2025 NY Slip Op 04940, CtApp 9-11-25

Practice Point: Where an appeal presents a mixed question of law and fact (here, whether there was probable cause for a drug transaction arrest based on the witnessed exchange of an unidentified object), the review by the Court of Appeals il limited to whether the motion court’s ruling has support in the record.​

 

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THE PROVISION OF THE CORRECTION LAW WHICH REQUIRES AN OUT-OF-STATE SEX OFFENDER TO BE CLASSIFIED AS A “SEXUALLY VIOLENT OFFENDER” UPON RESIDING IN NEW YORK, REGARDLESS OF WHETHER THE OUT-OF-STATE OFFENSE WAS VIOLENT, IS UNCONSTITUTIONAL AS APPLIED TO THIS DEFENDANT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Taylor, determined the Correction Law provision requiring that an out-of-state sex-offender be automatically classified as a “sexually violent offender” upon residing in New York was unconstitutional as applied to the defendant:

Pursuant to Correction Law § 168-a(3)(b), the People … provided notice of their intent to seek a “sexually violent offender” designation for the defendant based on the out-of-state conviction because the defendant was required to register as a sex offender in Florida. * * *

We hold that the foreign registration clause, insofar as applied to the defendant, is not rationally related to a legitimate government interest, and therefore violates his substantive due process rights (see People v Brown, 41 NY3d at 284).

In particular, we agree with the Appellate Division, Fourth Department’s conclusion that, “[D]esignating [a] defendant as sexually violent merely because he [or she] had an out-of-state sex conviction requiring out-of-state registration, regardless of whether that underlying offense is violent—as is currently required by the text of Correction Law § 168-a(3)(b)—bears no rational relationship to the legitimate governmental interest of informing the public of threats posed by sex offenders” (People v Malloy, 228 AD3d at 1289).” People v Edwards, 2025 NY Slip Op 04922, Second Dept 9-10-25

Practice Point: Here the Correction Law provision requiring that out-of-state sex offenders be classified as “sexually violent offenders” upon residing in New York was deemed unconstitutional as applied to the defendant, whose out-of-state offense was nonviolent.​

 

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THE CONSENT-SEARCH PROBATION CONDITION WAS NOT WARRANTED IN THIS DWI CASE; THERE WAS A COMPREHENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a comprehensive two-justice dissent, determined the probation condition requiring defendant to consent to a search of his person or home was not warranted in this DWI case. Defendant was found asleep in his car, engine running, with a bottle of alcohol on the seat. He had twice before been convicted of DWI:

… [W]e hold that the consent-search condition imposed by the sentencing court is not reasonably related to defendant’s rehabilitation or necessary to ensure that he will lead a law-abiding life. Initially, it is undisputed that defendant was not armed with a weapon when he committed the crime of which he was convicted. Defendant also has no history of violence or use of weapons and has never been convicted of an offense involving weapons … . * * *

… [T]he circumstances of defendant’s past use of illegal substances do not support a finding that the imposition of the consent-search condition was reasonably necessary to ensure that defendant will lead a law-abiding life or to assist him to do so, particularly where the frequency and magnitude of his use of illegal substances are unknown … . * * *

There are certain limited circumstances where alcohol becomes contraband for the purposes of the consent-search condition, such as when it is open and located in a running vehicle … . However, the consent-search condition is not limited to conform to these specific circumstances. Rather, the condition broadly authorizes warrantless searches of defendant’s person, vehicle and place of abode. This extensive reach into areas of defendant’s life where he may legally possess and consume alcohol is not reasonably related to defendant’s rehabilitation or individually tailored in relation to the offense committed, especially considering that defendant will still be “checked up on” pursuant to the condition permitting unannounced visits from a probation officer at his residence or elsewhere, which he does not challenge … . People v Andrus, 2025 NY Slip Op 04817, First Dept 8-28-25

Practice Point: Consult this decision and dissent for insight into when a consent-search probation condition is warranted and when, as here, it is inappropriate.

 

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THE DEFENDANT DID NOT HAVE STANDING TO MOVE TO SUPPRESS THE GUN FOUND UNDER HIS SEAT IN THE CAR; THE PEOPLE DID NOT RELY ON THE STATUTORY PRESUMPTION THAT THE OCCUPANTS OF A CAR POSSESS CONTRABAND IN THE CAR; RATHER THE PEOPLE RELIED ON THE TESTIMONY OF A POLICE OFFICER WHO SAW DEFENDANT PLACE AN OBJECT UNDER HIS SEAT; AFTER DEFENDANT GOT OUT OF THE CAR, THE BARREL OF THE GUN WAS IN PLAIN VIEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress a weapon seized from a car in which defendant was a passenger should not have been granted. Defendant, who had no possessory interest in the car, did not have standing to contest the search of the car. The People did not rely on the statutory presumption that the occupants of a car possess contraband in the car. Rather, the People relied on the testimony of an officer who saw the defendant put an object under his seat. The barrel of the seized gun was in plain view:

A vehicle passenger with no ownership or possessory interest in the vehicle does not have a legitimate expectation of privacy in its interior … . As a result, a passenger in a car who is not charged with possession of a weapon or drugs under a statutory presumption (see Penal Law § 265.15[3] …) has no standing to challenge the search of the vehicle once it has been lawfully stopped … . Here, the People did not rely on the statutory presumption of possession but instead relied on the direct observations of a police detective. Specifically, the police detective testified at the suppression hearing that, during the initial stop of the vehicle in which the defendant was a passenger, the detective observed the defendant reach between his legs and place something under his seat. After the defendant had been removed from the vehicle, the detective looked through the windshield and saw, underneath the front passenger seat in the area where he had seen the defendant place something, the front of the barrel of a gun in plain view. Because the People relied on that testimony rather than any statutory presumption to establish possession of the gun, the defendant did not have standing to challenge the search of the vehicle in which he was a passenger and had no ownership interest … . Moreover, the defendant does not challenge the legality of the vehicular stop, which, in any event, was found by the court to have been lawful—a determination that may not be reviewed on this appeal (see CPL 470.15[1] …). Accordingly, the defendant failed to establish his standing to challenge the search of the vehicle and the seizure of the gun … . People v Knight, 2025 NY Slip Op 04736, Second Deppt 8-20-25

Practice Point: A passenger in a car who has no ownership or possessory interest in the car does not have standing to contest the search of the car unless the People rely on the statutory presumption, i.e., the occupants of a car possess contraband in the car. Here the People relied on testimony from an officer who saw the defendant put an object on the floor of the car under his seat and the barrel of the gun was in plain view. The defendant had no ownership or possessory interest in the car. The People did not rely on the statutory presumption. So defendant did not have standing move to contest the search of the car.

 

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COUNTY COURT DECIDED TO ANONYMIZE POTENTIAL AND EMPANELED JURORS IN THIS MURDER TRIAL; THE MAJORITY CONCLUDED THE ANONYMIZED JURY DID NOT CONSTITUTE A MODE OF PROCEEDINGS ERROR AND DID NOT WARRANT INTERVENTION IN THE INTEREST OF JUSTICE; THE TWO-JUSTICE DISSENT ARGUED THE EFFECT OF THE ANONYMIZED JURY ON THE PRESUMPTION OF INNOCENCE WARRANTED REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court’s “unsupported decision to anonymize potential and empaneled jurors” was not a mode of proceedings error and did not require reversal in the interest of justice:

From the dissent:

Considering the significance of the jury’s determination that defendant acted with the intent to kill rather than some lesser objective, the potential effect of empaneling an anonymous jury on defendant’s presumption of innocence warrants corrective action. We need look no further than the Court of Appeals’ characterization of the use of an anonymous jury, even with the proper factual predicate, as an “extraordinary procedure” (People v Flores, 32 NY3d at 1088). The logical import from the Court’s statement is that an error in the process is equally extraordinary and warrants corrective action. Moreover, although defendant was aware of the names of the jurors, that does not resolve the effect that employing an anonymous jury has on the presumption of innocence. Although not expressly stated, the majority’s decision to forgo corrective action in this case appears to be founded on the conclusion that the error itself is not significant; in other words, a harmless error analysis without explicit reference, which, as previously noted, this Court has already rejected when addressing the improper use of an anonymous jury … . All told, regardless of preservation, the principle remains that an appellate court is not in a position to “adjudge the causal effect that the error in empaneling an anonymous jury might have had on the jury’s verdict” … . For these reasons, we believe corrective action is warranted in this case and would reverse and remit for a new trial. People v Goberdhan, 2025 NY Slip Op 04601, Third Dept 8-7-25

Practice Point: Consult this decision for a discussion of the propriety of anonymizing the jury and the effect an anonymized jury may have on the presumption of innocence.

Same “anonymized jurors” issue and result (over a two-justice dissent) in People v Reinfurt, 2025 NY Slip Op 04603, Third Dept 8-7-25

 

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HERE THE VICTIMLESS CRIME DID NOT CONSTITUTE “EXTRAORDINARY CIRCUMSTANCES” WITHIN THE MEANING OF THE “RAISE THE AGE” LEGISLATION; THE PEOPLE’S MOTION TO PREVENT THE REMOVAL OF THE ADOLESCENT OFFENDER’S CASE FROM THE YOUTH PART OF SUPREME COURT TO FAMILY COURT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a comprehensive opinion by Justice Chambers, determined the People’s motion to prevent the removal of this criminal action against a 16-year-old from the Youth Part of Supreme Court to Family Court should not have been granted. The opinion focuses on the meaning of “extraordinary circumstances” in the controlling “Raise the Age” legislation which would warrant overcoming the presumption supporting removal to Family Court for adolescent offenders. The opinion is far too detailed to fairly summarize here:

In effect, the Youth Part treated a single rearrest—absent a conviction—as dispositive of the defendant’s future potential. That reasoning, if broadly applied, would undermine the core purpose of the Raise the Age legislation. The mere fact that an adolescent engaged in rehabilitative services and was later arrested, without more, does not constitute “strong proof” … that he or she is beyond the reach of the Family Court system.

Although the Youth Part concluded that “no one factor on its own may have been enough,” it found that the defendant’s prior record and prior service engagement, “coupled” with the “nature of the pending charges,” amounted to extraordinary circumstances. But none of those factors, either individually or together, rise to the level of exceptionality contemplated by the Raise the Age legislation. A second arrest for a victimless act of adolescent bravado does not convert otherwise ordinary circumstances into extraordinary ones.

Therefore, the Youth Part should have denied the People’s motion pursuant to CPL 722.23(1) to prevent removal of this action to Family Court and transferred this action to the Family Court, Richmond County. People v Lloyd F., 2025 NY Slip Op 04583, Second Dept 8-6-25

Practice Point: Consult this opinion for an in-depth analysis of the criteria for keeping an adolescent offender’s prosecution in the Youth Part of Supreme Court as opposed to removing the case to Family Court for a juvenile-delinquency proceeding.

 

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THE VICTIM OF THE ASSAULT AND ATTEMPTED ROBBERY COULD NOT IDENTIFY THE DEFENDANT; THE VIDEO OF THE INCIDENT DIDN’T HELP; DEFENDANT WAS ARRESTED BECAUSE HE WAS DEPICTED IN SURVEILLANCE VIDEO NEAR THE SCENE WEARING DISTINCTIVE RIPPED AND PATCHED PANTS WHICH WERE NOT MENTIONED BY THE VICTIM OR DEPICTED IN THE INCIDENT VIDEO; THE ARREST WAS NOT SUPPORTED BY PROBABLE CAUSE; INDICTMENT DISMISSED AFTER GUILTY PLEA (FIRST DEPT).

The First Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, in a full-fledged opinion by Justice Manzanet-Daniels, determined defendant was arrested in the absence of probable cause requiring suppression of seized evidence and defendant’s statements. Several arguments raised by the People on appeal were not considered because the arguments were not made below. Defendant was accused of assault and attempted robbery of a woman on the street.. The woman was unable to describe the assailant. Video of the incident did not help. Video near the scene depicted a man with distinctive ripped and patched pants, which led to the arrest of the defendant 10 days later. But there was no evidence the assailant was wearing the distinctive pants:

The detective obtained clearer video that depicted a male individual in distinctive ripped and patched pants near the scene and heading northbound, but that video did not capture the attack (nor any other incriminating behavior, for that matter). The detective concluded that the man in the distinctive pants was the perpetrator, apparently due to temporal and geographical proximity. Notably, when shown stills from the footage, the victim was still unable to recognize defendant as her assailant. The detective did not recollect the complainant stating that her assailant fled northbound; rather, the detective surmised the same from the surveillance videos. * * *

Because DHS arrested defendant without probable cause, all evidence flowing from the arrest, including defendant’s statements and the contents of the shoe box, was unlawfully obtained and must be suppressed … . The People are not entitled to a remand for further suppression proceedings, as they “had a full opportunity to present their case at the original hearing” and refrained from submitting alternative theories for denying suppression … .

Dismissal of the indictment is the appropriate remedy in this case. The People’s remaining evidence — namely, the surveillance videos showing the suspect in the area before and after the attack and Detective Hostetter’s “confirmatory” identification of defendant at the shelter — is not sufficient to establish a prima facie case if the People were to try defendant upon remand. The complainant could not provide a description of her assailant, the assailant is unidentifiable in the videos showing the attack, and defendant’s now-suppressed statements and pants were the only evidence connecting him to the crime scene … . People v Williams, 2025 NY Slip Op 04526, First Dept 7-31-25

Practice Point: Here defendant pled guilty but the indictment was dismissed because his arrest was not supported by probable cause.

Practice Point: If the People were given a full opportunity to present available evidence and to make legal arguments at the motion stage, evidence not presented and arguments not made there will not be considered on appeal.

 

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EVEN WHERE DEFENDANT PLED GUILTY AND WAIVED APPEAL WITH THE UNDERSTANDING HE WILL NOT BE AFFORDED YOUTHFUL OFFENDER STATUS A MOTION TO VACATE THE SENTENCE BASED ON THE JUDGE’S FAILURE TO CONSIDER YOUTHFUL OFFENDER STATUS IS AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court and vacating defendant’s sentence, in a full-fledged opinion by Justice Wan, determined the sentencing judge’s failure to consider defendant’s youthful offender status can be raised in a motion to vacate the sentence, despite the failure to appeal the conviction on that ground. Here defendant pled guilty and waived appeal with the understanding that he would not be afforded youthful offender status:

In this appeal, we must consider whether a defendant who has failed to take a direct appeal from a judgment of conviction and sentence may, in the first instance, seek to set aside his or her sentence pursuant to CPL 440.20 on the ground that the Supreme Court failed to make a determination as to whether the defendant was eligible for youthful offender treatment. We hold that, under such circumstances, a defendant may seek to set aside his or her sentence pursuant to CPL 440.20. * * *

Here, as the People conceded in opposition to the defendant’s motion, the defendant was an “eligible youth” (see CPL 720.10). However, despite the defendant’s status as an “eligible youth,” the Supreme Court failed to make the required youthful offender determination at the sentencing proceeding. Since the court was required to make this determination on the record at sentencing, the court’s failure to follow this statutorily-mandated procedure rendered the defendant’s sentence invalid as a matter of law (see id. § 440.20[1] …). People v Steele, 2025 NY Slip Op 04494, Second Dept 7-30-25

Practice Point: Even where a defendant pleads guilty with the understanding he will not be afforded youthful offender status and waives appeal, the sentencing judge must consider affording defendant youthful offender status. The failure to appeal the conviction is not a bar to a motion to vacate the sentence on this ground.

 

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