You are here: / Criminal Law
, ,

DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF; THEREFORE THE JUDGE WAS NOT REQUIRED TO CONDUCT A SEARCHING INQUIRY TO DETERMINE WHETHER DEFENDANT’S REQUEST WAS KNOWING, VOLUNTARY AND INTELLIGENT; A TWO-JUSTICE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, determined he did not make an unequivocal request to represent himself. The two-justice dissent disagreed:

… [D]efendant did not unequivocally request to proceed pro se inasmuch as he only “ask[ed] to proceed pro se as an alternative to receiving new counsel,” thereby seeking to “leverage his right of self-representation in an attempt to compel the court to appoint another lawyer” … . Indeed, defendant repeatedly “made clear that he did not wish to proceed pro se,” and “couched [his requests] as a means to secure new counsel” … , including by stating that he had “no choice” but to represent himself if the court did not assign new counsel, and that he “d[id]n’t want to represent [him]self” but would do so if the court refused to appoint another attorney … . Defendant made no “standalone request to proceed pro se” … ; rather, all of his “requests to proceed pro se were made in the alternative; he sought to represent himself only because [the court] refused to replace . . . assigned counsel who had displeased him” … . A request to proceed pro se is equivocal where, as here, “it ‘does not reflect an affirmative desire for self-representation’ and instead shows that ‘self-representation was reserved as a final, conditional resort’ ” … . Inasmuch as defendant’s requests consisted of “equivocal and hesitant statements about proceeding pro se” … , the court’s duty to “make a searching inquiry . . . to determine whether [the] request[s] w[ere] knowing, voluntary, and intelligent” was not triggered … . People v Davis, 2025 NY Slip Op 04300, Fourth Dept 7-25-25

Practice Point: Consult this decision for a thorough discussion of what makes a defendant’s request to represent himself “unequivocal” (thereby by triggering the need for a searching inquiry by the judge into whether the request is knowing, voluntary and intelligent).

 

, , , ,

COUNTY COURT VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW BY FAILING TO NOTIFY DEFENDANT IT INTENDED TO ASSESS POINTS IN THE SORA RISK-LEVEL HEARING THAT WERE NOT RECOMMENDED BY THE BOARD OR PROPOSED BY THE PEOPLE; NEW HEARING ORDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing County Court and ordering a new SORA risk assessment hearing, determined County Court violated defendant’s right to due process of law by failing to notify defendant it intended to assess points that were not recommended by the Board of Examiners of Sex Offenders or proposed by the People. Although the defendant did not object to the assessment, the Fourth Department exercised its interest of justice jurisdiction and considered the appeal. People v Buckmaster, 2025 NY Slip Op 04378, Fourth Dept 7-25-25

Practice Point: Defendants are entitled to notice that the court intends to assess points in a SORA risk-level proceeding that were not recommended by the Board or proposed by the People. Failure to provide notice is a violation of due process.​

 

,

CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE EXPLAINED (FOURTH DEPT).

The Fourth Department, affirming the convictions, explained the co-conspirator exception to the hearsay rule. A two-justice partial dissent argued there was insufficient evidence of defendant’s guilt of murder, attempted murder and assault as an accessory:

…[T]he court properly admitted in evidence the text messages sent by the female codefendant to defendant’s cell phone pursuant to the coconspirator exception to the hearsay rule. ” ‘A declaration by a coconspirator during the course and in furtherance of the conspiracy is admissible against another coconspirator as an exception to the hearsay rule’ ” … . Such a declaration may be admitted only where the People have established a prima facie case of conspiracy ” ‘without recourse to the declarations [of that coconspirator]’ ” … . “The prima facie case of conspiracy does not need to be established before the coconspirator’s statements are admitted in evidence, so long as ‘the People independently establish a conspiracy by the close of their case’ ” … . People v Brown, 2025 NY Slip Op 04331, Fourth Dept 7-25-25

Practice Point: Consult this decision for insight into the application of the co-conspirator exception to the hearsay rule.

 

, ,

THE PROSECUTOR RECOMMENDED A LEVEL ONE RISK ASSESSMENT BUT THE JUDGE ASSESSED ADDITIONAL POINTS AT THE CONCLUSION OF THE HEARING RAISING THE RISK LEVEL TO TWO; BECAUSE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO ARGUE FOR A DOWNWARD DEPARTURE, DEFENDANT IS ENTITLED TO A NEW HEARING (FOURTH DEPT).

The Fourth Department, reversing County Court and remitting the matter, determined defendant was not given an adequate opportunity to argue for a downward departure. The prosecutor had requested a level one risk assessment, but the judge assessed additional points and raised the risk level to two at the conclusion of the hearing:

Defendant further … the court abused its discretion in not granting a downward departure based on certain mitigating factors. At the SORA hearing, the People requested that defendant be designated a level one sex offender, but at the conclusion of the hearing, the court assessed additional points, rendering defendant a level two sex offender. Although defendant does not contend on appeal that the court violated his right to due process by sua sponte assessing additional points … , the court’s ruling did not afford defendant a meaningful opportunity to request a downward departure … . We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new hearing and risk level determination … . People v Kuhn, 2025 NY Slip Op 04434, Fourth Dept 7-25-25

Practice Point: Here the prosecutor recommended risk- level one but the judge, at the conclusion of the hearing, assessed additional points and raised the risk-level to two. The defendant should have been given the opportunity to argue for a downward departure in that circumstance. New hearing ordered.

 

, ,

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.

 

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