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

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

From the dissent:

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

 

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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).

 

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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.​

 

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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.

 

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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.

 

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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.

 

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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.

 

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