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THE DETECTIVE DID NOT READ THE MIRANDA RIGHTS TO DEFENDANT AND IT IS CLEAR FROM THE VIDEOTAPE THAT DEFENDANT COULD NOT HAVE READ THE WRITTEN EXPLANATION OF THOSE RIGHTS BEFORE HE WAIVED THEM; THE PEOPLE, THEREFORE, DID NOT PROVE DEFENDANT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVED THE MIRANDA RIGHTS; THE MOTION TO SUPPRESS DEFENDANT’S STATEMENTS SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing the conviction, suppressing defendant’s statements and ordering a new trial, over a dissent, determined the People did not demonstrate defendant knowingly, intelligently and voluntarily waived his right to remain silent and his right to counsel before speaking with the detective. The detective never explained the Miranda rights verbally. Defendant was given a paper which explained the rights. The videotape of defendant’s interview showed that defendant looked at the paper for no more than five seconds before signing it:

As can be seen from the videotape, neither the detective nor defendant read all of the Miranda rights out loud and, while they did discuss Miranda in general, the focus of the oral interaction was about the waiver of the right to counsel and not the other rights described on the Miranda form. There is no indication that defendant actually read all of the warnings or comprehended them. Indeed, the videotape establishes that defendant looked at the form for less than five seconds before he reached for the pen to sign it. Based on our review of the video, we conclude that it is highly improbable, if not impossible, for defendant to have read to himself all of the Miranda warnings during the five seconds the piece of paper was in front of him before he signed. More to the point, the People failed to meet their burden of proving beyond a reasonable doubt that defendant was adequately apprised of his relevant constitutional rights before waiving them.

Although “[t]here is no rule, statutory or otherwise, requiring that Miranda warnings be read to a suspect” … , there is no evidence in this case that defendant was actually “administered” such rights … or that such rights were “verbally outline[d]” to him … . People v Marsh, 2025 NY Slip Op 03874, Fourth Dept 6-27-25

Practice Point: There is no requirement that the police read the Miranda rights to a suspect out loud. But the People have the burden of proving the defendant knowingly, intelligently and voluntarily waived those rights before defendant was interviewed. Here the videotape of the interview demonstrated the detective did not explain the rights verbally. Rather, the detective provided defendant with a paper explaining the rights. The videotape demonstrated defendant looked at the paper for no more than five seconds before signing it. The People therefore failed to prove a knowing, intelligent and voluntary waiver of the Miranda rights and suppression was warranted.

 

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IN THIS CHILD PORNOGRAPHY CASE, COMPELLING DEFENDANT TO UNLOCK THE CELL PHONE WITH HIS FINGERPRINT AMOUNTED TO TESTIMONIAL EVIDENCE THAT HE OWNED, CONTROLLED AND HAD ACCESS TO THE CONTENTS OF THE PHONE, A VIOLATION OF HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION; THE MOTION TO SUPPRESS THE TESTIMONIAL EVIDENCE AND THE CONTENTS OF THE PHONE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Ogden, determined compelling defendant to unlock his cell phone with his finger (the cell phone was programmed to recognize defendant’s fingerprint) violated defendant’s Fifth Amendment right against self-incrimination. The police were acting pursuant to a child-pornography search warrant when defendant was compelled to unlock the phone. The cell phone contained child pornography. Defendant pled guilty. The issue on appeal was whether defendant’s motion to suppress the images on the phone should have been granted:

… [T]he People do not dispute that the opening of the cell phone was compelled and incriminating. We are thus tasked with determining whether defendant’s compelled opening of his cell phone, upon the warrant’s execution, had a testimonial aspect sufficient to trigger Fifth Amendment protection.

… [W]e conclude that defendant’s “act of unlocking the phone represented the thoughts ‘I know how to open the phone,’ ‘I have control over and access to this phone,’ and ‘the print of this specific finger is the password to this phone’ ” … . The biometric data defendant provided “directly announce[d] [defendant’s] access to and control over the phone, as well as his mental knowledge of how to unlock the device” … . The act of production cases also support the conclusion that, upon execution of the warrant, defendant’s compelled unlocking of his phone through biometric data was testimonial. We conclude that “in response to the command to unlock the phone, [defendant] opened it, [and] that act disclosed his control over the phone [and] his knowledge of how to access it” … . At a minimum, the authentication through biometric data implicitly communicated that the contents contained therein were in defendant’s possession or control … .

… [T]he way in which the warrant was executed effectively required defendant to answer “a series of questions about ownership or control over the phone, including how it could be opened and by whom” … .

… “Because the compelled opening of the cellphone [during the execution of the search warrant] was testimonial, both the message and any evidence obtained from that communication must be suppressed” … . People v Manganiello, 2025 NY Slip Op 03873, Fourth Dept 6-27-25

Practice Point: At least where there is a question whether defendant owns and controls a cell phone which contains child pornography, compelling defendant to unlock the phone with his fingerprint is tantamount to defendant’s testimony that defendant owns, controls and has access to the contents of the phone—constituting a violation of a defendant’s Fifth Amendment right against self-incrimination.

 

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WHEN A WITNESS’S IDENTIFICATION OF THE DEFENDANT FROM A PHOTOGRAPH SHOWN TO HIM BY THE POLICE IS DEEMED “CONFIRMATORY,” THAT CONCLUSION IS TANTAMOUNT TO A DETERMINATION AS A MATTER OF LAW THAT THE POLICE IDENTIFICATION PROCEDURE WAS NOT SUGGESTIVE AND COULD NOT HAVE LED TO THE MISIDENTIFICATION OF THE DEFENDANT BECAUSE THE WITNESS KNEW THE DEFENDANT WELL; HERE THE PROOF THE IDENTIFICATION WAS CONFIRMATORY WAS INSUFFICIENT; THE IDENTIFICATION TESTIMONY SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, suppressing identification testimony and ordering a new trial, determined the evidence did not support the conclusion the witness’s identification of the defendant from a photograph shown to him by the police was “confirmatory.” Deeming an identification as confirmatory is tantamount to finding there is no chance the police identification procedure could lead to misidentification because the witness knows the defendant well:

“A court’s invocation of the ‘confirmatory identification’ exception is . . . tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is ‘little or no risk’ that police suggestion could lead to a misidentification” … . “In effect, it is a ruling that however suggestive or unfair the identification procedure might be, there is virtually no possibility that the witness could misidentify the defendant” … . “The People bear the burden in any instance they claim that a citizen identification procedure was ‘merely confirmatory’ ” … . “[T]he People must show that the protagonists are known to one another, or where . . . there is no mutual relationship, that the witness knows defendant so well as to be impervious to police suggestion” … . “[W]hether the exception applies depends on the extent of the prior relationship, which is necessarily a question of degree” … . In determining whether the witness is sufficiently familiar with the defendant, a court may consider factors such as “the number of times [the witness] viewed [the] defendant prior to the crime, the duration and nature of the encounters, the setting, the period of time over which the viewings occurred, the time elapsed between the crime and the previous viewings, and whether the two had any conversations” … .

Here … the evidence was insufficient to establish that the witness’s pretrial photo identification of defendant was confirmatory as a matter of law because, “[a]lthough the witness testified that he knew defendant because he had seen him ‘a couple of times’ at the barber shop, and that the two had each other’s phone numbers, [the witness] also testified that he did not know defendant well, that he knew him only by a common nickname, and that they never spoke again after the assault” … . … [T]he witness testified at trial that he had seen defendant a couple times at the barber shop … , and the evidence at the hearing similarly established that the witness had either interacted with defendant twice or approximately four or five times including a couple of times at the barber shop. … [T]he witness testified … that he knew defendant “not much but a little bit,” that he knew defendant only by his nickname and not his given name, and that he never heard from defendant again after the assault … . People v Alcaraz-Ubiles, 2025 NY Slip Op 03929, Fourth Dept 6-27-25

Practice Point: Consult this decision for insight into the quantum of evidence necessary to prove a witness’s identification of the defendant from a photograph shown to him by the police was “confirmatory” because the defendant was well known to the witness.

 

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EVEN WHERE THERE IS EVIDENCE DEFENDANT INTENTIONALLY AIDED IN THE COMMISSION OF THE UNDERLYING FELONY, THE TRIAL JUDGE MUST INSTRUCT THE JURY ON THE FELONY-MURDER AFFIRMATIVE DEFENSE WHERE THERE IS EVIDENCE THE DEFENDANT DID NOT PARTICIPATE IN THE ACTS CAUSING THE VICTIM’S DEATH AND THERE IS EVIDENCE TO SUPPORT ALL THE ELEMENTS OF THE DEFENSE (FOURTH DEPT).

The Fourth Department, reversing the murder second degree conviction and ordering a new trial, determined the judge should have given the jury instruction for the affirmative defense to felony murder. When defendant’s back was turned, a co-defendant shot and killed a man standing at the passenger door of a vehicle. Defendant then knocked to the ground a woman standing at the driver’s side of the vehicle and stole her purse. Defendant was not armed and stated to the police he did not know the co-defendant intended to commit a crime:

It is an affirmative defense to felony murder that the defendant “(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (b) Was not armed with a deadly weapon, or any instrument, article or substance [*2]readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and (c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and (d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury” (Penal Law § 125.25 [3]). * * *

Even where, as here, the evidence shows that a defendant “intentionally aided [the primary assailant] in the commission of” the underlying felony, a trial court errs in refusing to charge the affirmative defense to felony murder where there is evidence that the defendant “did not participate in the acts causing the victim’s death” … . Here, the trial evidence was “reasonably supportive of the view” that defendant satisfied the four elements of the affirmative defense and, “regardless of evidence to the contrary, the court [was] without discretion to deny the charge, and error in this regard requires reversal and a new trial” … . People v Rosa, 2025 NY Slip Op 03907, Fourth Dept 6-27-25

Practice Point: Where there is evidence to support the elements of the affirmative defense to felony murder, the judge has no discretion and must instruct the jury on the defense, even where there is evidence to the contrary.

 

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THE CONCLUSORY STATEMENTS BY THE OWNER OF THE STOLEN CAR AND AN INVESTIGATING OFFICER FAILED TO DEMONSTRATE THE VALUE OF THE CAR WAS GREATER THAN $3000; CRIMINAL POSSESSION OF STOLEN PROPERTY THIRD DEGREE CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing the possession-of-stolen-property-third-degree conviction, determined the value of the stolen property, a vehicle, was not proven:

Here, in addition to photographs of the vehicle admitted in evidence, the victim testified that he purchased the subject 2010 Toyota Prius as a new vehicle for approximately $20,000, that he drove it 240,000 miles over the course of the subsequent 12 years, and that it was in a “[h]eavily used,” albeit running, condition when it was stolen. Although the victim testified that he had previously consulted the “blue book” when considering whether to sell the vehicle, he ultimately provided, based on the condition of the vehicle and unspecified research, only vague testimony that his “guess” or “approximate estimation” was that the vehicle was valued at $4,000, which constituted a “[c]onclusory statement[ or] rough estimate[ ] of value [that is] not sufficient to establish the value of the property” at the time of its theft … . Moreover, although a police officer testified that he estimated that the vehicle was valued between $6,000 and $10,000 based on his observations of the vehicle and consultation with the “blue book,” that testimony was also conclusory. Indeed, there was no evidence that the officer had accurately ascertained the “blue book” value—which inexplicably varied significantly from the victim’s estimate—by appropriately accounting for the age, mileage, and condition of the vehicle … . Based on the evidence of value in the record, we cannot conclude ” ‘that the jury ha[d] a reasonable basis for inferring, rather than speculating, that the value of the property exceeded the statutory threshold’ of $3,000″ … . Consequently, we conclude on this record that the evidence is legally insufficient to establish that the value of the stolen vehicle was greater than $3,000 … . People v Szurgot, 2025 NY Slip Op 03906, Fourth Dept 6-27-25

Practice Point: Here the conclusory statements by the owner of the stolen car and the investigating officer estimating the value of the car constituted legally insufficient evidence that the value of the stolen property was greater than $3000.

 

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THE MARIJUANA REGULATION AND TAXATION ACT (MRTA) APPLIES TO THE EVIDENCE PRESENTED AT A SUPPRESSION HEARING AND PRECLUDES A FINDING OF PROBABLE CAUSE TO SEARCH A VEHICLE BASED SOLELY ON THE ODOR OF MARIJUANA; THEREFORE THE STATUTE APPLIES HERE WHERE, ALTHOUGH THE SEARCH WAS PRE-ENACTMENT, THE SUPPRESSION HEARING WAS POST-ENACTMENT (THIRD DEPT).

The Third Department, granting defendant’s suppression motion and vacating defendant’s guilty plea, in a full-fledged opinion by Justice Lynch, over a dissent, determined the Marijuana Regulation and Taxation Act (MRTA), which prohibits the search of a vehicle based solely on the odor of marijuana, applied to defendant’s case, even though the statute had not been enacted at the time of the search. The statute had been enacted at the time of the suppression hearing:

On this appeal, we are tasked with answering a question left open by the Court of Appeals in People v Pastrana (41 NY3d 23, 29 [2023] …) — namely, whether Penal Law § 222.05 (3) (a), enacted as part of the Marihuana Regulation and Taxation Act (hereinafter MRTA), applies to a post-enactment suppression hearing concerning a pre-enactment search. * * *

… Penal Law § 222.05 (3) (a) — enacted as part of the MRTA — provides that “in any criminal proceeding including proceedings pursuant to [CPL] 710.20 . . . , no finding or determination of reasonable cause to believe a crime has been committed shall be based solely on evidence of . . . the odor of cannabis” … . CPL 710.20 pertains to motions to suppress evidence. By this comprehensive and present tense language, Penal Law § 222.05 (3) (a) expressly limits a suppression court’s authority to base a probable cause finding solely upon evidence of the odor of marihuana without regard to when the vehicle search occurred. * * *

… [T]his provision is directed at the present evidentiary findings of a court, “and no real question of retroactive effect on past conduct or events is presented” … . Since Penal Law § 222.05 (3) (a) was in effect at the time of the suppression hearing and the suppression court’s probable cause finding was based solely upon the fact that the trooper smelled the odor of marihuana emanating from the vehicle, that determination was erroneous as a matter of law … . People v Martin, 2025 NY Slip Op 03842, Third Dept 6-26-25

Practice Point: Here the Marijuana Regulation and Taxation Act (MRTA) was deemed to apply to the evidence which can be considered at a probable-cause-to-search-a-vehicle hearing. Therefore there was no need to apply the statute retroactively where the search was pre-enactment but the suppression hearing was post-enactment.

 

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DEFENDANT CLAIMED HE TOOK POSSESSION OF THE VICTIM’S GUN AND FIRED AFTER THE VICTIM FIRED AT HIM; DEFENDANT WAS ACQUITTED OF ATTEMPTED MURDER, ATTEMPTED ASSAULT AND ASSAULT BUT CONVICTED OF CRIMINAL POSSESSION OF A WEAPON; THE JURY SHOULD HAVE BEEN INSTRUCTED ON “TEMPORARY LAWFUL POSSESSION OF A WEAPON;” NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s possession of a weapon conviction and ordering a new trial, determined the defense request for a jury instruction on lawful possession of a weapon should have been granted. Defendant raised the justification defense and was acquitted of the attempted murder, attempted assault and assault charges:

According to the defense theory, Farmer [the victim] fired several shots at the defendant before the defendant took possession of a gun and fired back at Farmer. Defense counsel also requested a charge on the defense of justification … as to the counts of criminal possession of a weapon, and a charge on the defense of temporary and lawful possession of a weapon as to those counts. The Supreme Court issued a deadly physical force justification charge, but declined to instruct the jury on the defenses of justification pursuant to Penal Law § 35.05(2) and temporary and lawful possession of a weapon with respect to the counts of criminal possession of a weapon. * * *

As reflected by the fact that the jury acquitted the defendant of the charges of attempted murder in the second degree, assault in the second degree, and attempted assault in the first degree, based upon a justification defense, there was a reasonable view of the evidence that the defendant took possession of the gun with a valid legal excuse … . The fact that the defendant fired a gun on a public street does “not negate a defendant’s entitlement to a temporary lawful possession instruction where the shooting was justified and the possession was otherwise lawful” … . Further, “the defendant’s intent to turn the subject weapon over to the lawful authorities is not a necessary element of the defense of temporary and lawful possession” … . Moreover, there is no evidence that the defendant retained the gun after fleeing the location of the shooting … . People v Walker, 2025 NY Slip Op 03830, Second Dept 6-25-25

Practice Point: Defendant claimed he took possession of the victim’s gun and fired only after the victim had fired at him. The jury should have been instructed on “temporary lawful possession of a weapon.”

 

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A POLICE OFFICER DESCRIBED STATEMENTS MADE BY THE VICTIMS BUT THE VICTIMS DID NOT TESTIFY; ALTHOUGH DEFENSE COUNSEL MENTIONED THE LACK OF CROSS-EXAMINATION IN A SUFFICIENCY-OF-EVIDENCE ARGUMENT, THE CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES WAS NOT SPECIFICALLY RAISED; THEREFORE THE CONSTITUTIONAL ISSUE WAS NOT PRESERVED FOR APPEAL; THERE WAS AN EXTENSIVE THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, affirming defendant’s conviction, over a three-judge dissent, determined the constitutional “confrontation” issue first raised on appeal had not been preserved. A police officer testified about the identities and physical descriptions of the assailants provided by one of the victims while she was being treated in an ambulance. The victims were expected to testify but never did:

Defendant’s motion at the close of the People’s case did not invoke the Confrontation Clause and the colloquy that took place between defense counsel and the court makes clear that the motion to dismiss was neither intended nor understood to raise a constitutional issue.  Moreover, counsel did not invoke or rely on any caselaw dealing with constitutional protections. Instead, counsel made evidentiary arguments regarding the persuasive quality of the prosecution’s proof and, when asked by the court, confirmed that the motion was limited to the sufficiency of the evidence. Further, the timing of defendant’s motion at the close of the People’s case—which defense counsel specifically referred to as “a trial order of dismissal” …—suggests that defendant’s aim was not to challenge testimony of the victim’s statements as violative of his right to confrontation, but simply as failing to meet the evidentiary bar for a prima facie case … . Additionally, counsel repeatedly told the court that his motion was “focus[ed]” on the third-degree robbery charge, demonstrating that the argument was a legal insufficiency one, rather than a Confrontation Clause challenge, which would necessarily apply to all charges with equal force. Contrary to defendant’s argument, the mere reference to a lack of cross-examination was insufficient to alert the court that defendant was making a constitutional argument … . People v Bacon, 2025 NY Slip Op 03692, CtApp 6-18-25

Practice Point: Here the violation of defendant’s constitutional right to confront the witnesses against him was a viable issue because statements made by two witness were described by a police officer but the witnesses did not testify. Although defense counsel mentioned the inability to cross-examine the witnesses in a “sufficiency-of-evidence” argument before the trial court, the constitutional confrontation argument was not specifically raised. The majority, over an extensive three-judge dissent, determined the constitutional issue was not preserved for appeal.

 

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THE IDENTIFICATION PROCEDURE WHICH USED DEFENDANT’S ARREST PHOTOGRAPH WAS UNDULY SUGGESTIVE REQUIRING SUPPRESSION OF THE RELATED IDENTIFICATIONS (SECOND DEPT).

The Second Department, reversing the burglary conviction and ordering a new trial on that count, determined the identification procedure, using an arrest photograph of the defendant, was unduly suggestive and the related identifications should have been suppressed:

Although the complainant’s identification of a Facebook photograph was not the product of a police-arranged identification procedure, the complainant’s identifications of the defendant from a single arrest photograph were the result of unduly suggestive identification procedures, and those identifications should have been suppressed … . Thus, the defendant is entitled to a new trial on the count of burglary in the second degree, to be preceded by a hearing to determine whether an independent source exists for the complainant’s identification of the defendant … . People v Wheeler, 2025 NY Slip Op 03747, Second Dept 6-18-25

Practice Point: Here the complainant’s identifications of the defendant from an arrest photograph should have been suppressed. The procedure was unduly suggestive.​

 

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DEFENDANT PLED GUILTY IN RETURN FOR A SENTENCE WHICH WAS LATER DETERMINED TO BE UNAUTHORIZED; DEFENDANT THEN CONSENTED TO A RESENTENCE WHICH WAS LONGER THAN THAT ORIGINALLY PROMISED; BECAUSE DEFENDANT WAS NOT EXPRESSLY AFFORDED THE OPPORTUNITY TO WITHDRAW HER PLEA, THE RESENTENCE WAS VACATED AND THE MATTER REMITTED; THE SENTENCING JUDGE CAN FASHION A SENTENCE WHICH IS IN ACCORDANCE WITH THE ORIGINAL PROMISE BY REDUCING THE OFFENSE CHARGED (THIRD DEPT).

The Third Department, vacating the resentence and remitting the matter, determined defendant was not given the opportunity withdraw her plea when she was resentenced:

Defendant … contends that because she entered a guilty plea with a sentencing promise — 10 years in prison, to be followed by five years of postrelease supervision — that was unauthorized, her plea was not knowing, voluntary or intelligent and she should have been afforded an opportunity to withdraw her guilty plea prior to resentencing. Initially, we note that “the illegality of the promised sentence does not, in itself, render a defendant’s guilty plea unknowing and involuntary” … and defendant did not preserve her voluntariness claim … . Regarding resentencing, where, as here, a plea bargain provides for a sentence that is not legal and an illegal sentence is imposed, “the trial court ha[s the] inherent power to correct [the] illegal sentence” … . However, “when a defendant’s guilty plea has been induced by a sentencing promise that the court later determines is inappropriate or illegal, that court must afford the defendant the opportunity to withdraw the plea or honor the plea-inducing promise” … . County Court could have either afforded defendant an opportunity to withdraw her guilty plea which, if she declined, would permit imposition of a lawful sentence, or “reduce[d] the sentence or the crime charged so that the sentence upon which the plea bargain was based can legally be imposed,” thereby honoring defendant’s sentencing expectations that induced her guilty plea … . However, at resentencing, the court did not “impose another lawful sentence that comport[ed] with . . . defendant’s legitimate [sentencing] expectations” … but, instead, merely procured defendant’s consent to a longer resentence which was not comparable to that contemplated by the plea agreement, without expressly affording her an opportunity to withdraw her guilty plea prior to that consent. This was error and, accordingly, the resentence must be vacated and the matter remitted to County Court to afford defendant an opportunity to move to withdraw her guilty plea or fashion a remedy to honor the sentencing promise … . People v Harrigan, 2025 NY Slip Op 03669, Third Dept 6-18-25

Practice Point: Here defendant consented to a longer sentence than that which was promised without being afforded the opportunity to withdraw her plea. The resentence was therefore vacated. The Third Department noted that the judge has the power to fashion a sentence which is in accordance with the original promise by reducing the charged crime.

 

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