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A DEFENDANT, BY HIS OR HER CONDUCT, CAN FORFEIT THE RIGHT TO A TRIAL BY 12 JURORS; HERE DEFENDANT APPROACHED THE JURY FOREMAN AT THE FOREMAN’S HOME AND THE FOREMAN WAS DISCHARGED; THE TRIAL JUDGE PROPERLY PROCEEDED WITH 11 JURORS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined defendant, by his egregious conduct directed at the jury foreperson, forfeited his right to a 12-person jury and the trial properly proceeded to a verdict with the remaining 11 jurors:

The foreperson testified that the court adjourned at around 1:00 the day before and, at around 1:25, he took a rideshare home. Outside the gate to his home, a man approached him “on behalf of” defendant and said that defendant was innocent and “being extorted.” The man handed him documents, three of which the foreperson produced for the court. The foreperson asked how the man knew where he lived; the man said: “Public records.” The foreperson testified that he was unsure if the man was the same person as defendant and denied telling the ADA that it was defendant. He described the man as the same height as himself, of indeterminate race, dark-skinned but lighter than himself, average build, and wearing a hat, sunglasses, and a jacket with a high collar. In addition, it was overcast and rainy. The whole interaction lasted under a minute, after which the foreperson went inside and called the ADA [the foreperson’s friend, not the trial ADA] “in a bit of a panic,” concerned for his family’s safety. He then contacted the court on the ADA’s advice. He testified that he could not be impartial. With the agreement of the parties, the court discharged him from the jury, reminded him that the case was ongoing, and instructed him not to speak to anyone about his experience. * * *

Whether forfeiture applies to the right to a jury of 12 is an issue of first impression, but forfeiture has been applied to many constitutional rights in the criminal procedure context. For example, a defendant may forfeit the right to counsel by engaging in ” ‘egregious conduct,’ ” albeit “only as a matter of ‘extreme, last-resort . . . analysis’ ” in cases involving brutal, violent, or persistent abuse … . Use of “violence, threats or chicanery” to make a witness unavailable may result in the forfeiture of the right to confront the witness … . A defendant may forfeit the right to be present at all stages of trial by engaging in courtroom conduct so disruptive that the trial cannot proceed in their presence … . Likewise, a pro se defendant’s disruptive conduct may result in the forfeiture of the right to self-representation … .

We see no reason to exclude the right to trial by a jury of exactly 12 persons from the universe of forfeitable rights. People v Sargeant, 2025 NY Slip Op 06361, CtApp 11-20-25

Practice Point; A defendant, by his or her conduct, can forfeit the right to a trial by 12 jurors. Here the defendant approached the jury foreman at the foreman’s home resulting in the foreman’s discharge from the jury. The trial judge properly proceeded with 11 jurors.

 

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THE SEARCH WARRANT WAS BASED UPON STATEMENTS BY AN INFORMANT; BUT THE WARRANT APPLICATION DID NOT DEMONSTRATE THE BASIS OF THE INFORMANT’S KNOWLEDGE; THEREFORE THE EVIDENCE SEIZED PURSUANT TO THE WARRANT SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Second Department, reversing the Appellate Division, determined the search warrant failed the basis of knowledge requirement of the Aguilar-Spinelli test. The seized evidence should have been suppressed, requiring the dismissal of several counts:

… [W]e hold that as a matter of law the evidence provided in support of the 205 Curtis Street search warrant failed to satisfy the basis of knowledge requirement of the Aguilar-Spinelli test … . The general allegation that the informant was “aware that narcotics are kept inside the location” provides no indication “that the information was based upon personal observation” … . Likewise, the informant’s statement that at some unidentified point in time the informant had conducted a narcotics transaction at that address “did not describe defendant’s activities with sufficient particularity to warrant an inference of personal knowledge” … . Nor was the information conveyed by the informant corroborated by police observation … . Accordingly, the informant’s statements fail to meet the requirements of Aguilar-Spinelli and, because there are no other allegations in the search warrant affidavit to establish “a reasonable belief that an offense has been or is being committed or that evidence of a crime may” have been found at 205 Curtis Street … , the search warrant for that address was not supported by probable cause, and the evidence seized there should have been suppressed. People v Berry, 2025 NY Slip Op 06358, Second Dept 11-20-25

Practice Point: If a search warrant is based upon an informant’s statement, to be valid, the warrant application must demonstrate the information was based upon the informant’s personal knowledge.

 

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THE DEFENDANT’S WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE FAILED TO ADVISE DEFENDANT (1) THAT THE STATE WOULD BEAR THE COSTS OF AN APPEAL IF THE DEFENDANT COULD NOT AFFORD THEM; AND (2) THE WAIVER DID NOT ENCOMPASS THE LOSS OF RIGHTS TO COUNSEL AND THE WAIVER OF COSTS, FEES, AND EXPENSES; IN ADDITION THE JUDGE DID NOT ASCERTAIN WHETHER DEFFENDANT READ AND UNDERSTOOD THE WRITTEN WAIVER FORM, OR WHETHER DEFENDANT HAD DISCUSSED THE WAIVER WITH COUNSEL (SECOND DEPT). ​

The Second Department determined defendant’s waiver of appeal was invalid:

… [T]he defendant’s purported waiver of his right to appeal was invalid. Among other things, during the appeal waiver colloquy, the Supreme Court failed to advise the defendant that if he could not afford the costs of an appeal or of an attorney to represent him on appeal, then the State would bear those costs … or to advise the defendant that the waiver of the right to appeal did not encompass the loss of attendant rights to counsel and the waiver of costs, fees, and expenses … . Although the defendant executed a written appeal waiver form, the court failed to ascertain on the record whether the defendant had read the written waiver, was aware of all of its contents, and had discussed the entire written waiver with counsel, including the portion of the written waiver addressing the attendant rights to counsel and the waiver of costs, fees, and expenses … . Thus, under the circumstances of this case, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal, and the purported appeal waiver does not preclude appellate review of any of the defendant’s contentions … . People v Mingo, 2025 NY Slip Op 06335, Second Dept 11-19-25

Practice Point: Consult this decision for insight into what a judge must advise and ask the defendant to ensure the waiver of appeal is knowing and intelligent.

 

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THE DISTRICT ATTORNEY’S DATASHEET IS AN ATTORNEY-WORK-PRODUCT WHICH IS NOT SUBJECT TO FOIL DISCLOSURE; BECAUSE PETITIONER DID NOT SUBSTANTIALLY PREVAIL IN THE FOIL PROCEEDINGS, PETITIONER WAS NOT ENTITLED TO AN AWARD OF ATTORNEY’S FEES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the District Attorney’s (D.A.’s) datasheet was an attorney-work-product which was not subject to a FOIL disclosure:

Supreme Court appropriately ordered an in camera inspection of all records responsive to petitioner’s FOIL request, including the datasheet that was ultimately produced with redaction of personal information regarding certain people involved in the relevant criminal matter (Public Officers Law § 84 et seq.). However, those records should not have included the D.A. datasheet. This Court has previously held that the D.A. datasheet constitutes attorney work product, as it contains the analysis and conclusions of the intake attorney … . As a result, CPLR 3101(c) protects the datasheet from disclosure under FOIL, and it is not subject to disclosure even with redactions … .

In light of this determination, the award of attorneys’ fees is unwarranted, as petitioner has not “substantially prevailed” in its appeal of respondent’s denial … . Furthermore, even had petitioner substantially prevailed, Supreme Court made no “find[ing] that the agency had no reasonable basis for denying access,” and thus, there was no basis for an award of attorneys’ fees to petitioner … . Matter of Law Off. of Cyrus Joubin v Manhattan Dist. Attorney’s Off., 2025 NY Slip Op 06283, First Dept 11-18-25

Practice Point: A FOIL request for a District Attorney’s datasheet will be denied because the datasheet is privileged (attorney-work-product).

 

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THE “REFRAIN FROM GANG-RELATED ASSOCIATIONS” PROBATION CONDITIONS WERE STRUCK BECAUSE THERE WAS NO EVIDENCE DEFENDANT HAD ANY CONNECTION WITH GANGS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined a probation condition imposed by the court must be stricken because it was not shown to be related to “defendant’s rehabilitative prospects:”​

Defendant’s challenges to two of his probation conditions as unrelated to his rehabilitation do not require preservation and survive his waiver of the right to appeal … . * * *

… [T]he probation condition requiring defendant to “[r]efrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang if directed by the Department of Probation” must be stricken, as there is no evidence that defendant’s crime was connected to any gang activities or that he has any history of gang membership or gang … . Accordingly, this condition was not reasonably necessary to further defendant’s rehabilitative prospects based on his background and proclivities …. . People v Holguin, 2025 NY Slip Op 06141, First Dept 11-6-25

Practice Point: Challenges to probation conditions need not be preserved for appeal and survive a waiver of appeal.

Practice Point: The appellate courts will strike probation conditions which are not demonstrated to be relevant to the defendant’s offense. Two other decisions, not summarized here, were released this week in which the probation condition requiring defendant to financially support dependents was struck because it was not shown to be relevant to defendant’s rehabilitation for the charged offense. (People v Bonfante, 2025 NY Slip Op 06068, Second Dept 11-6-25;  People v Larkin, 2025 NY Slip Op 06077, Second Dept 11-6-25)

 

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THE WAS NO PROOF DEFENDANT VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT AT THE SORA RISK-LEVEL HEARING; ORDER REVERSED AND MATTER REMITTED FOR A NEW HEARING (SECOND DEPT).

The Second Department, reversing the SORA risk-level determination, held that the record did not establish that defendant waived his right to be present at the risk-level hearing:

“A sex offender facing risk level classification under SORA has a due process right to be present at the SORA hearing” (… see Correction Law § 168-n[3]). “To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence” … . “Before proceeding in the defendant’s absence, the court must make an inquiry and recite on the record the facts and reasons it relied upon in determining that the defendant’s absence was deliberate” (… see Correction Law § 168-n[6]). Here, defense counsel expressly stated that the defendant was not waiving his right to be present after he failed to appear for the SORA hearing, and there is no evidence in the record that the defendant was made aware of the consequences of failing to appear for the SORA hearing or that his absence … was deliberate.

Since the record fails to establish that the defendant voluntarily waived his right to be present at the SORA hearing, the order must be reversed and the matter remitted to the Supreme Court, Kings County, for a new risk level assessment hearing and a new determination thereafter, to be preceded by notice to the defendant in accordance with Correction Law § 168-n(3). People v Blount, 2025 NY Slip Op 05972, Second Dept 10-29-25

Practice Point: Consult this decision for insight into what must be placed on the record to explain a defendant’s absence from a SORA risk-level-assessment proceeding.

 

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DEFENDANT DID NOT ADMIT HE INTENDED TO COMMIT A CRIME IN THE BUILDING HE ENTERED AND REMAINED UNLAWFULLY; THEREFORE THE PLEA ALLOCUTION DID NOT ESTABLISH THE ELEMENTS OF ATTEMPTED BURGLARY; DEFENDANT’S VIOLATION OF A STAY-AWAY ORDER IS NOT ENOUGH; PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s plea to attempted burglary, determined defendant’s plea allocution negated an essential element of the offense, thereby calling into question the voluntariness of the plea: Burglary requires the intent to commit a crime while unlawfully entering or remaining in a building. Defendant did not admit he intended to commit a crime in the building. The fact that he violated a stay-away order by entering the building was not sufficient:

During the plea allocution the court asked defendant if it was true that he knowingly entered and remained unlawfully at the premises, which is a dwelling, and attempted to commit a crime inside. Defendant responded, “That wasn’t my intent, but I did remain unlawfully.” Defense counsel then stated “Yes, there was a protective order which he violated.” The court then asked defendant, “That was with the intent to violate the order of protection, is that right”? Defendant responded, “Yes.”

A key element of burglary is establishing the defendant’s intent in entering or remaining unlawfully in a building to commit a crime therein … . The violation of a stay-away provision in an order of protection, alone, cannot, without more, be used to establish the requisite state of mind to elevate criminal trespass to a burglary … .

Once defendant denied his intent to commit a crime within the premises, the court was required to inquire further to ensure that defendant’s guilty plea was, in fact, knowing and voluntary … . As the People concede, given that the court failed to inquire and improperly accepted the guilty plea, the plea must be vacated … . People v Gee, 2025 NY Slip Op 05924, First Dept 10-28-25

Practice Point: To constitute burglary, the defendant must intend to commit a crime when entering or remaining in a building. It is not enough that, by entering the building, the defendant violated a stay-away order. The defendant must have intended to commit a crime in the building.

 

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POST-RELEASE SUPERVISION (PRS) CAN PROPERLY BE IMPOSED WHERE A DEFENDANT IS SENTENCED UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); DEFENDANT WAIVED HER RIGHT TO APPEAL THE SENTENCE AS EXCESSIVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined five years post-release supervision (PRS) was properly imposed as part of defendant’s sentence and defendant waived the right to appeal her sentence as excessive. Defendant pled guilty to second-degree murder and was sentenced to ten years incarceration under the Domestic Violence Survivors Justice Act (DVSJA):​

Defendant does not challenge the carceral component of her sentence. Instead, she asserts that the court had no statutory authority to impose five years’ PRS on a defendant convicted of a class A felony and sentenced under the DVSJA. We may review defendant’s claim that her sentence is illegal even though, as we explain, her appeal waiver is valid … . However, defendant misinterprets the statutory scheme, and her claim boils down to a policy argument best suited for the legislature, not the judiciary. * * *

The legislative history of the DVSJA supports our straightforward reading of the Penal Law, and our conclusion that the legislature only intended to give judges discretion to reduce the periods of incarceration for certain defendants who are domestic violence survivors, not to wholly eliminate PRS in such cases … . * * *

… [T]he court specifically advised defendant that certain issues would survive the waiver, and counsel confirmed that they had reviewed those issues with defendant. The written waiver further clarified that, as explained in defendant’s conversation with the court and counsel, defendant was waiving any claim that her sentence is excessive. Under these circumstances, the Appellate Division properly concluded that defendant knowingly, intelligently and voluntarily waived her excessive sentence claim. People v Hernandez, 2025 NY Slip Op 05874, CtApp 10-23-25

Practice Point: Post-release supervision (PRS) can properly be imposed where a defendant is sentenced under the Domestic Violence Survivors Justice Act (DVSJA).

 

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THE DEFENSE WAS TIMELY PROVIDED WITH IMPEACHMENT INFORMATION REGARDING AN ARRESTING OFFICER; THE FACT THAT AN ADDITIONAL DOCUMENT WITH THAT INFORMATION WAS PROVIDED AFTER THE CERTIFICATE OF COMPLIANCE (COC) WAS FILED, DID NOT RENDER THE PROSECUTION UNTIMELY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a two-judge dissent, determined the prosecution’s failure to turn over an Internal Affairs Bureau (IAB) report which was relevant to the credibility of one of the arresting officers (Congedo) before the filing of the certificate of compliance (COC) with the discovery timetable did not render the prosecution untimely. The opinion is fact-specific. The prosecution had timely alerted the defense to a federal lawsuit based on the alleged misbehavior of the arresting officer described in the IAB report. The majority concluded the allegations in the lawsuit constituted timely notice of the relevant information in the IAB report. The dissent disagreed because the report included information not referenced in the federal lawsuit:

… CPL 245.20 (1) (k) (iv) does not require production of a document just because it provides additional information not in other impeachment material. The question instead is whether the document “tends to . . . impeach the credibility of a testifying prosecution witness” …  Here, the IAB report does not. Our conclusion is not based on any prejudice analysis, but on application of the relevant statutory language. * * *

Because the IAB report did not contain any separate allegations of misconduct against Congedo nor any support for the amended complaint’s allegations as they pertained to Congedo, it did not have any “tend[ency] to . . . impeach” her credibility (CPL 245.20 [1] [k] [iv]). …

… [T]he IAB report itself has no impeachment value. This is not a prejudice consideration … . Rather, CPL 245.20 (1) (k) (iv)’s “tends to . . . impeach” standard inserts considerations of evidentiary value into the disclosure requirement itself. Nothing in CPL 245.20 (1) (k) (iv) additionally requires the People to disclose every single document referencing impeachment material subject to disclosure based solely on that reference. People v Fuentes, 2025 NY Slip Op 05872, CtApp 10-23-25

Practice Point: Re: discovery of information which may be used to impeach an arresting officer, the prosecution is not required to turn over every document which references the impeachment material. Here the defense was given timely notice of a federal lawsuit which included the impeachment material. The fact that a report which referenced the impeachment material was not turned over to the defense until after the certificate of compliance (COC) was filed did not invalidate the COC.

 

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AFTER BREAKING UP A FIGHT BETWEEN TWO MEN ON THE STREET AND HANDCUFFING THEM, THE POLICE QUESTIONED DEFENDANT WITHOUT GIVING THE MIRANDA WARNINGS; DEFENDANT’S ADMISSION HE HAD PUNCHED THE VICTIM SHOULD HAVE BEEN SUPPRESSED; THE ERROR WAS HARMLESS HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined defendant was subjected to custodial interrogation when he was questioned on the street after he was handcuffed. Because the Miranda warnings were not given, defendant’s admission to punching the victim should have been suppressed. However the error was harmless in light of the other evidence, including a video. The police approached defendant and the victim, who were fighting, on the street. Both men were handcuffed and then questioned:

… [I]t is not dispositive that defendant was questioned in the immediate aftermath of the altercation, while the officers were still determining whether a crime had occurred—circumstances Supreme Court seemingly relied on in deeming the encounter a “classic case of investigatory questioning” that did not require Miranda warnings. Our case law draws no categorical distinction between interrogation and so-called investigatory questioning. Interrogation is almost definitionally investigatory in nature. And while we have recognized a “distinction between coercive interrogation and permissible street inquiry” … , the most salient difference between these categories is not when the questioning takes place, but the presence or absence of custody … . As we have explained, “routine police investigation of suspicious conduct on the street generally does not entail a significant deprivation of freedom which would require Miranda warnings” … . Absent “both the elements of police ‘custody’ and police ‘interrogation,’ ” there is no “constitutional requirement that the police recite interrogation warnings when they direct questions or comments at members of the public or solicit information and assistance” … . But where, as here, investigatory questions are directed to a person who is in custody, under circumstances police should know are likely to yield an incriminating response, Miranda warnings are required. People v Robinson, 2025 NY Slip Op 05871, CtApp 10-23-25

Practice Point: Here the police broke up a street fight, handcuffed both men, and then questioned them. Even though the police were still investigating what happened when defendant was questioned, defendant was “in custody” and was being “interrogated,” mandating the Miranda warnings.

 

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