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PROVIDING COUNSEL WITH “MEANINGFUL NOTICE” OF THE CONTENTS OF A NOTE FROM THE JURY DOES NOT NECESSARILY REQUIRE READING THE NOTE INTO THE RECORD VERBATIM; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, affirming the convictions, over a two-justice dissent. determined the judge did not commit a mode of proceedings error when responding to two notes from the jury. The dissenters argued the notes should have been read into the record “verbatim:”

In People v O’Rama (78 NY2d 270 [1991]), the Court of Appeals in addressing the “notice” requirement contained in CPL 310.30, held that “notice” means “meaningful” notice to counsel of the “actual specific content of the jurors’ request” … . * * *

O’Rama suggested that upon receipt of a written jury request, the note should be marked as a jury exhibit before the jury is recalled into the courtroom and read into the record in the presence of counsel. After the contents are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. Finally, the court should read the communication in open court in the presence of counsel, the defendant and the jury … . However, failure to strictly follow this suggested procedure does not always result in a violation of the notice requirements of CPL 310.30 or rise to the level of a mode of proceedings error, as the designation of a mode of proceedings error is “reserved for the most fundamental flaws. The error must go to the essential validity of the process and be so fundamental that the entire trial is irreparably tainted” … . * * *

… [S]trict adherence to the “best practice” procedure suggested in O’Rama is not required so long as the fundamental purpose of CPL 310.30 is achieved, which is providing counsel with meaningful notice of the contents of a jury note so that counsel has an opportunity to provide meaningful input to the court’s response. People v Vilella, 2026 NY Slip Op 00097, First Dept 1-13-26

Practice Point: The majority held that providing counsel with “meaningful notice” of the contents of a jury not did not require reading the note into the record verbatim. There was a two-justice dissent.

 

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ALTHOUGH THE JUDGE DID NOT COMMIT TO CONCURRENT SENTENCES, THE PLEA AGREEMENT CONTEMPLATED CONCURRENT SENTENCES AND THE JUDGE’S STATEMENTS CREATED CONFUSION ON THE ISSUE; IN THE INTEREST OF JUSTICE, AND TAKING INTO ACCOUNT THE CONTENTS OF THE PRESENTENCE REPORT, THE CONSECUTIVE SENTENCES WERE VACATED AND CONCURRENT SENTENCES WERE IMPOSED (THIRD DEPT).

The Third Department, directing that defendant’s sentences be served concurrently, not consecutively, determined that the plea agreement contemplated the imposition of concurrent sentences and the judge’s confusing and ambiguous language in the plea colloquy warranted modification of the sentence:

We recognize that the imposition of consecutive sentences was authorized under Penal Law § 70.25 (2) … , and that County Court did not make any express sentencing commitment to defendant. However, the plea agreement contemplated the imposition of concurrent sentences, County Court stated during the plea proceedings that the maximum term of imprisonment defendant faced on a class C violent felony was 15 years, and the court used confusing and ambiguous language during the plea colloquy regarding the possibility of consecutive sentencing … . In light of the confusion, defendant seeks vacatur of his plea or modification of the sentence to reflect a concurrent sentence. On this record, and after accounting for the circumstances set forth in the PSR, we find that the imposition of concurrent sentences is appropriate and modify the judgment accordingly … . People v Bonville, 2026 NY Slip Op 00039, Third Dept 1-8-25

Practice Point: Here it is possible the defendant entered the plea agreement with the understanding that the sentences would run concurrently. Although the judge did not commit to concurrent sentences, the judge’s statements on the issue were confusing and ambiguous. The Third Department, in the interest of justice, after reviewing the presentence report, imposed concurrent sentences.

 

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THE SIX-YEAR DELAY BETWEEN DEFENDANT’S SEXUAL-MISCONDUCT GUILTY PLEA AND THE SORA RISK-ASSESSMENT HEARING DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge concurrence, determined that the six-year delay between defendant’s guilty plea to sexual misconduct and the SORA risk-level assessment hearing did not deprive defendant of his right to due process of law:

Defendant pled guilty to one count of sexual misconduct, a sex offense requiring registration under the Sex Offender Registration Act (SORA). Nevertheless, defendant was not notified of his SORA registration requirements, and approximately six years passed from the time of his plea before this mistake was brought to the attention of the Board of Examiners of Sex Offenders. After a full, albeit delayed, SORA proceeding, defendant was designated a level one sex offender, the least restrictive designation available, with the required twenty-year registration period ordered nunc pro tunc from the date of his release. Defendant claims that the delay between his plea and his SORA hearing violated his substantive due process rights. We disagree and hold that defendant failed to make the required showing that the delay prejudiced his ability to present his case to the SORA court and for that reason, we affirm. People v Collier, 2026 NY Slip Op 00074, CtApp 1-8-26

Practice Point: Consult this opinion for a discussion of the substantive and procedural due process protections raised by a six-year delay in holding a SORA risk-level assessment hearing.

 

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THE UNDERLYING OFFENSE AND DEFENDANT’S LIMITED HISTORY OF ALCOHOL ABUSE DID NOT WARRANT A PROBATION CONDITION REQUIRING CONSENT TO SEARCHES FOR WEAPONS, DRUGS AND OTHER CONTRABAND (FIRST DEPT).

The First Department struck the probation condition requiring defendant’s consent to searches for weapons, drugs and other contraband:

The court improperly imposed, as a condition of defendant’s probation, a requirement that he consent to a search by his probation officer of his person, vehicle, or home for weapons, drugs, drug paraphernalia, and other contraband. Defendant was not armed with a weapon during the underlying offense and had no history of violence or use of weapons … . Defendant did not have a history of abusing illicit substances and was not assessed as being in need of drug abuse treatment … . Although defendant admitted to a limited history of alcohol abuse, before and at the time of the instant offense, the consent-search condition, as written, “is not limited to conform” to the “certain limited circumstances where alcohol becomes contraband for the purposes of” that condition … . People v Aquirre, 2026 NY Slip Op 00025, First Dept 1-6-25

Practice Point: The First Department struck a probation condition requiring consent to searches for weapons, drugs and other contraband, which was not justified by the underlying offense or defendant’s limited history of alcohol abuse.

 

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THE PROBATION CONDITION PROHIBITING ASSOCIATION WITH GANGS WAS STRICKEN BECAUSE THE CONDITION WAS NOT RELEVANT TO THE UNDERLYING OFFENSE OR DEFENDANT’S REHABILITATION; THE ISSUE SURVIVES A WAIVER OF APPEAL AND A LACK OF PRESERVATION (FIRST DEPT).

The First Department, striking a probation condition, determined the condition prohibiting defendant’s association with gangs was not related to defendant’s rehabilitation: The First Department noted that the issue survives a waiver of appeal and a lack of preservation:

Defendant’s appeal waiver does not foreclose her challenges to the legality of the conditions of her probation under Penal Law § 65.10(1) and do not require preservation … . …

… [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 because there is no evidence that defendant’s actions were connected to gang activity or that she had a history of gang membership, rendering this condition neither reasonably related to her rehabilitation nor necessary to ensure that she leads a law-abiding life ( … Penal Law § 65.10[1]). People v Johnson, 2026 NY Slip Op 00029, First Dept 1-6-25

Practice Point: The appellate courts are striking probation conditions not shown to be relevant to the underlying offense or criminal history.

Same issue and result in People v Seymore, 2026 NY Slip Op 00028, First Dept 1-6-25

 

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THERE WAS NO EVIDENCE DEFENDANT USED DRUGS TO EXCESS AT THE TIME OF THE OFFENSE OR IN THE PAST; THE 15 POINT ASSESSMENT UNDER RISK FACTOR 11 WAS THEREFORE ELIMINATED, REDUCING THE RISK LEVEL FROM THREE TO TWO (SECOND DEPT). ​

The Second Department, reducing the SORA risk assessment from level three to level two, determined the evidence did not support assessing 15 points for using drugs to excess:

“In order to support the assessment of points under risk factor 11, . . . the People must show by clear and convincing evidence that the offender used drugs or alcohol in excess either at the time of the crime or repeatedly in the past” … . Here, the People failed to present clear and convincing evidence that the defendant’s marijuana use on the date of the offense was excessive or “causally linked to the sexual assault” … . The People’s evidence was also insufficient to establish that the defendant used marijuana or other substances in excess repeatedly in the past … . Without the assessment of points under risk factor 11, the defendant’s point total was 100, which is within the range for a presumptive level two designation. People v Gregory, 2025 NY Slip Op 07420, Second Dept 12-31-25

 

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THE PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE JUSTIFICATION DEFENSE REQUIRED REVERSAL AFTER TRIAL AND DISMISSAL OF THE INDICTMENT (WITHOUT PREJUDICE) (SECOND DEPT).

The Second Department, reversing defendant’s conviction and dismissing the indictment (without prejudice), determined the prosecutor erroneously failed to explain the justification defense to the grand jury. Although defendant had a knife, there was evidence the victim had a gun and was the initial aggressor:

If the District Attorney fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment (see id. § 210.35[5] …). “‘[A] prosecutor should instruct the [g]rand [j]ury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'” … . “Where the evidence before the grand jury supports it, the charge on justification must be given” … .

“In determining whether the evidence supports a justification defense, the record must be viewed in the light most favorable to the defendant” … . Here, a surveillance video shown to the grand jury indicated that the defendant approached Graves inside a store while holding a knife. Nevertheless, when viewing the evidence in the light most favorable to the defendant, there is a reasonable view of the evidence that the defendant was not the initial aggressor, Graves pointed a gun at the defendant, the defendant stabbed Graves to defend himself from the imminent use of deadly physical force against him, and the defendant could not safely retreat (see Penal Law § 35.15[2][a] …). People v Mead, 2025 NY Slip Op 07412, Second Dept 12-31-25

Practice Point: Where the evidence viewed in the light most favorable to the defendant satisfies the criteria for a defense to the offense, the prosecutor must so instruct the grand jury. Failure to do so renders the grand jury proceeding defective and the indictment must be dismissed, even after a conviction at trial.

 

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THE JUDGE’S RESTRICTIONS ON THE TESTIMONY OF THE DEFENSE “FALSE CONFESSION” EXPERT, AND THE DENIAL OF DEFENDANT’S REQUEST FOR A “PROMISE BY POLICE” JURY INSTRUCTION REQUIRED A NEW TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction and ordering a new trial, determined the judge erroneously restricted the defense false-confession-expert’s testimony and erroneously denied defendant’s request for a “Promise by Police” jury instruction (defendant testified the police made promises to him during the 12-hour interrogation):​

… [T]he court limited the scope of the defendant’s expert’s testimony by precluding the mention of a study by the Innocence Project, which found that of the more than 300 people who had been, at the time, exonerated by DNA, approximately 25% of those people had confessed, and a study conducted at the University of Michigan Law School, where researchers found that of the 1,405 exonerations that took place between 1989 and 2012, 10% of the people had falsely confessed, and people with mental illness or intellectual disability were overrepresented in those who had done so. Here, the court improperly concluded that those studies were not relevant … .

…[T]he studies were relevant to illustrate the risk of false confessions, and specifically, a study related to mental disability is proper in this case where the defendant was found to have an IQ lower then 93% of individuals in his age group. … [T]he court limited the scope of the expert’s testimony as to existing research on false confessions … . The court further compounded this error by denying admission of a portion of the defendant’s expert’s curriculum vitae, ruling, without basis, that the titles of certain articles listed therein would be inappropriate for a jury to see, thereby depriving the jury of information relevant to the credibility and weight of the expert’s testimony … . Moreover, these errors allowed the People’s expert to testify that research in the area of false confessions is scant and that the study of false confessions and the evaluation of psychological vulnerabilities was a “primitive subdiscipline.” … [T]he court also scheduled the trial on a date that the defendant’s expert was not available. Although the use of video recorded testimony is not error, “[l]ive televised testimony is certainly not the equivalent of in-person testimony” … . As such, the jury was able to observe the in-court testimony of the People’s expert, but was only able to observe the defendant’s expert on a television screen, and even that testimony was edited to exclude the aforementioned studies. People v Grigoroff, 2025 NY Slip Op 07400, Second Dept 12-31-25

​Practice Point: Consult this decision for insight into how restrictions placed on an expert’s testimony can create the impression there is little or no support for the expert’s conclusions in the relevant literature. Here, because the defense expert was not allowed to discuss the studies upon which his “false confession” conclusions were based, the People’s expert was able to tell the jury “false confession” research is “scant” and is a “primitive subdiscipline.” In addition, the trial was scheduled when the People’s expert could attend, but the defense expert could not, forcing the defense expert to submit videotaped testimony.

 

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WHETHER FAMILY COURT HAD JURISDICTION OVER THIS FAMILY OFFENSE PROCEEDING DEPENDED ON WHETHER THERE WAS AN “INTIMATE RELATIONSHIP” BETWEEN PETITIONER AND RESPONDENT; THE EXISTENCE OF AN “INTIMATE RELATIONSHIP” IS A FACT-INTENSIVE INQUIRY WHICH, WHEN IN DISPUTE, REQUIRES A HEARING; MATTER REMITTED FOR THE HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge should have ordered a hearing to determine whether the respondent had an “intimate relationship” with the petitioner such that a family offense proceeding alleging identify theft could be brought by the petitioner against the respondent. Whether an “intimate relationship” exist is a fact-intensive inquiry and when it is in dispute a hearing should be held:

Family Court’s jurisdiction in family offense proceedings, as defined by Family Ct Act § 812 (1), extends to enumerated offenses occurring between members of the same family or household, including those “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . While the statute does not define “intimate relationship,” it expressly excludes casual acquaintances and ordinary social or business associations … . In determining whether an intimate relationship exists, courts consider, among other things, “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … . Additionally, “the relationship should be direct [and] not one based upon a connection with a third party” … . Whether an intimate relationship exists is a fact-intensive inquiry to be resolved on a case-by-case basis … . When the existence of an intimate relationship is in dispute, or the record is insufficient to permit determination as a matter of law, Family Court should conduct a hearing before dismissing the petition for lack of jurisdiction … . Matter of McCarra v Chiaramonte, 2025 NY Slip Op 07352, Third Dept 12-31-25

Practice Point: Family Court has jurisdiction over family offense proceedings involving unrelated parties if there exists an “intimate relationship” between the parties. Determining whether there is an “intimate relationship” is a fact-intensive inquiry usually requires a hearing.

 

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THE PEOPLE AGREED DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WARRANTED A SUPPRESSION HEARING BUT ARGUED THE ISSUE WAS NOT PRESERVED BECAUSE THE ORDER DENYING A SUPPRESSION HEARING INCLUDED THE PHRASE “WITH LEAVE TO RENEW UPON A SHOWING OF SUFFICIENT FACTUAL ALLEGATIONS” RENDERING THE ORDER NONFINAL AND UNAPPEALABLE; THE FIRST DEPARTMENT NOTED THAT NO OTHER EVIDENCE CAME TO LIGHT WHICH COULD HAVE SUPPORTED A RENEWAL MOTION; THE ORDER WAS THEREFORE DEEMED FINAL AND APPEALABLE (FIRST DEPT).

The First Department, holding defendant’s plea and sentencing in abeyance, remitted the matter for a Mapp/Dunaway hearing to determine whether the seizure of a gun dropped by the defendant was facilitated by unlawful police conduct. In the omnibus motions defendant argued that he dropped the gun as a spontaneous response to the police officers’ approaching and then chasing him without reasonable suspicion. On appeal, the People agreed defendant was entitled to a hearing. The contested issue on appeal was whether the order denying the suppression motion “with leave to renew upon a showing of sufficient factual allegations” rendered the order nonfinal and therefore unappealable. The First Department determined the order was final:

The issue in contention on this appeal is whether the court’s summary denial of defendant’s suppression motion — which ended with the statement that the motion “is denied, with leave to renew upon a showing of sufficient factual allegations” — qualifies as an “order finally denying a motion to suppress evidence” which would preserve the suppression issue for appeal under CPL 710.70(2). While phrases like “leave to renew” or “leave to submit” may be some indicia of a lack of finality under CPL 710.70(2), they do not, standing alone, render a court’s ruling nonfinal. * * *

… [T]he court incorrectly rejected the defendant’s detailed recitation of his suppression theory and there was no further evidence produced by the People that could bolster defendant’s theory on renewal.

Accordingly, we remit to Supreme Court to hold a Mapp/Dunaway hearing. People v Diaby, 2025 NY Slip Op 07343, First Dept 12-30-25

Practice Point: Here the People argued that the order denying a suppression hearing was nonfinal and therefore unappealable because it included the phrase “with leave to renew upon a showing of sufficient factual allegations.” The First Department noted that this was not a case where additional evidence came to light which would have supported renewal and the defendant failed to make a renewal motion. Here no new evidence came to light. The denial of the suppression motion was therefore deemed a final, appealable order.