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WITHOUT AN AGREEMENT ON THE RECORD, A FAMILY COURT JUDGE CANNOT ORDER RESTITUTION IN A JUVENILE DELINQUENCY PROCEEDING FOR ITEMS NOT RECITED IN THE PETITION (THIRD DEPT).

The Third Department, reversing Family Court in this juvenile delinquency proceeding, determined there was nothing in he record demonstrating respondent (juvenile) accepted an admission in exchange for restitution on all charges. The order of restitution was reversed:

Family Court may order a person who has been adjudicated a juvenile delinquent to make “restitution in an amount representing a fair and reasonable cost to replace the property [or] repair the damage caused by” him or her (Family Ct Act § 353.6 [1] [a]). In doing so, Family Court has “broad discretion” in determining the proper disposition in a juvenile delinquency proceeding … , but, as a court of limited jurisdiction, remains constrained to exercise the powers granted to it by statute … . Unlike the Penal Law, which permits restitution for damage to property that was not alleged in the charging document but still “part of the same criminal transaction” (Penal Law § 60.27 [4] [a]), there is “no parallel provision in Family Court Act § 353.6,” thus restitution is generally limited to those items recited in the petition … . To this further point, “a juvenile may be required to pay restitution for a charge to which he or she did not admit only where there is a recorded agreement to accept an admission in exchange for restitution” … . Matter of Juan Z. (Juan Z.), 2025 NY Slip Op 03674, Third Dept 6-18-25

Practice Point: Unlike under the Penal Law, the ability of a Family Court judge under the Family Court Act to order restitution in a juvenile delinquency proceeding is limited to the items recited in the petition and/or in an agreement on the record.

 

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“MAKING A TERRORISTIC THREAT” IS A BAILABLE FELONY (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Hallligan, over a three-judge dissent, determined “making a terroristic threat” is a bailable felony:

Michael Cavagnolo was arrested and charged with making a terroristic threat after he repeatedly called the Hyde Park Police Department emergency line threatening to commit violent acts against officers, their families, and Police Department property. County Court fixed bail pursuant to CPL 510.10 (4) (a). That paragraph makes bailable all violent felony offenses listed in Penal Law § 70.02, with two specific exceptions. One of the offenses listed in Penal Law § 70.02 is the crime of making a terroristic threat (see Penal Law § 70.02 [1] [c]). Paragraph (g) of CPL 510.10 (4), however, makes bailable the felony crimes of terrorism defined in Penal Law article 490 but expressly excludes the crime of making a terroristic threat.

Although these two paragraphs are difficult to reconcile, the text and disjunctive structure of CPL 510.10 (4) indicate that paragraph (g) was not intended to narrow the independent authorization provided in paragraph (a) to set monetary bail for all violent felony offenses listed therein. We therefore hold that making a terroristic threat is a bail-eligible offense. Accordingly, we reverse. People ex rel. Ellis v Imperati, 2025 NY Slip Op 03646, CtApp 6-17-25

Practice Point: Despite seemingly conflicting statutory provisions, “making a terroristic threat” was deemed a bailable felony by the Court of Appeals.

 

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BAIL MAY BE IMPOSED ON A DEFENDANT WHO IS CHARGED WITH COMMITTING NEW OFFENSES WHILE OUT ON BAIL, EVEN IF THE NEW OFFENSES WOULD NOT OTHERWISE QUALIFY FOR THE IMPOSITION OF BAIL (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Garcia, over a two-judge concurrence, determined a defendant who commits new offenses when out on bail is subject to the imposition of bail for the new offenses, even when the new offenses would not otherwise have qualified for the imposition of bail:

CPL 510.10 (4) (t) provides a judge with discretion to set bail on certain otherwise non-qualifying offenses committed after a defendant has been “released under conditions” on a prior charge. The issue raised on this appeal is whether a defendant who is arrested on new charges after having been released on bail on the prior, underlying charge is “released under conditions” within the meaning of that provision. We hold that the statute applies in such circumstances, and because affirmative habeas relief is no longer available, we reverse the Appellate Division … .

The 2019 bail reform legislation eliminated cash bail for most crimes, except for certain specified qualifying offenses listed in CPL 510.10 (4) … . In 2020, the legislature amended subdivision (4) by expanding the categories of offenses that qualified for bail. The changes included the addition of CPL 510.10 (4) (t), a harm-on-harm provision, by which “an otherwise non-qualifying offense may be converted into a qualifying offense” … . Under that provision, certain ineligible crimes may otherwise qualify for bail if those crimes “arose from conduct occurring while the defendant was released on his or her own recognizance, released under conditions or had yet to be arraigned after the issuance of a desk appearance ticket for a separate felony or class A misdemeanor involving harm to an identifiable person or property” … . For purposes of section (4) (t), the underlying crime need not be a qualifying offense … . People ex rel. Welch v Maginley-Liddie, 2025 NY Slip Op 03645, CtApp 6-17-25

Practice Point: Where a defendant is charged with new offenses committed while on bail, bail may be imposed for the new offenses even where they otherwise would not qualify for the imposition of bail.

 

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HERE DEFENDANT’S SENTENCE WAS REDUCED PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) AFTER SHE HAD BEEN IMPRISONED LONGER THAN THE MAXIMUM ALLOWED BY THE DVSJA; THE EXCESS PRISON TIME SHOULD NOT HAVE BEEN CREDITED TO ELIMINATE THE PERIOD OF POSTRELEASE SUPERVISION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge dissent, determined defendant’s (Brenda’s) sentence was properly reduced by the Appellate Division pursuant to the Domestic Violence Survivors Justice Act (DVSJA), but the excess time Brenda was imprisoned beyond the maximum allowed by the DVSJA should not been credited to eliminate the period of postrelease supervision:

The DVSJA requires that resentenced defendants be given a period of postrelease supervision. Penal Law § 70.45 (2) (f) … states that that the period of postrelease supervision for resentences imposed under Penal Law § 60.12 (8) “shall be” not less than two and one-half years nor more than five years. That requirement is specific to DVSJA resentences. * * *

… [T]he Appellate Division was within its plenary factual review power when it reversed and reduced Brenda’s sentence pursuant to the DVSJA, but because the court’s imposition of the maximum term of postrelease supervision may have been based on its erroneous conclusion that time Brenda spent incarcerated beyond that imposed by the DVSJA resentencing could be credited against the term of postrelease supervision required by the DVSJA, the order of the Appellate Division should be modified, without costs, by remitting the case to the Appellate Division for further proceedings in accordance with this opinion … . People v Brenda WW., 2025 NY Slip Op 03643, CtApp 7-17-25

Practice Point: The Appellate Division has the power to make a “de novo” determination whether a defendant is entitled to a sentence reduction pursuant to the Domestic Violence Survivors Justice Act (DVSJA).​

Practice Point: Where a defendant’s sentence is reduced under the DVSJA to a term below the amount of time already served by the defendant, the excess time cannot be credited towed the period of postrelease supervision.

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S REPEATED CLAIMS, DURING SUMMATION, THAT EVERYTHING THE JURY HEARD FROM DEFENDANT WERE “LIES;” MANSLAUGHTER CONVICTION REVERSED AND NEW TRIAL ORDERED (CT APP).

The Court of Appeals, reversing defendant’s manslaughter conviction and ordering a new trial, in a full-fledged opinion by Judge Halligan, with two concurrences, determined defense counsel was ineffective for failing to object to the prosecutor’s claims during summation that defendant had repeatedly lied. Defendant had been abused by the victim and had asserted the justification defense. She testified she stabbed the victim once in fear for her life when the victim lunged at her, after he had raped her:

During summation, the prosecutor sought to undermine the defendant’s justification defense by suggesting that the defendant was not credible. In furtherance of that strategy, the prosecutor told the jury, “You never heard testimony that [the defendant] was in fear for her life. You never heard testimony that she was in fear of serious injury. Nothing.” As the People concede, this statement was false. The defendant had, in fact, testified that immediately before the stabbing she was “scared for my life,” and when subsequently asked whether she had testified that she was “afraid for your life,” the defendant responded “Yes, I was.”

Additionally, the prosecutor claimed in summation that the defendant had lied on the stand, using the word “lie” or “lies” fourteen times in total. Among other comments, the prosecutor claimed that “the only thing we can get out of [the defendant] are lies”; that her testimony was “unsubstantiated wild lies”; and that her testimony was “[m]eant to distract you from . . . the endless lies she has told you throughout this entire process.” The prosecutor also posed rhetorical questions along similar lines to the jury: “How could you possibly believe one thing that comes out of her mouth after all the lies she told you?” and “What wouldn’t she lie about?” Following summations, the court excused the jury and expressed concern about “[t]he repeated use of the word lies, which I also was going to limit if not eliminate,” but noted that it did not do so as the word “had been used throughout the trial without objection and I didn’t think it was proper for me to do it at this point.”

Defense counsel did not object either to the prosecutor’s flat misstatement of the defendant’s testimony that she feared for her life or to the repeated use of the word “lies.”  People v T.P., 2025 NY Slip Op 03642, CtApp 6-17-25

Practice Point: Consult this decision for insight into when a prosecutor can go too far in summation.

 

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A WAIVER OF APPEAL DOES NOT PRECLUDE A CHALLENGE TO A PROBATION CONDITION ALLOWING WARRANTLESS SEARCHES; THE CONDITION ALLOWING ALLOWING WARRANTLESS SEARCHES FOR DRUGS WAS NOT REASONABLY RELATED TO DEFENDANT’S REHABILITATION (FIRST DEPT).

The First Department determined (1) a waiver of appeal does not preclude a challenge to a probation condition allowing warrantless searches, and (2) there was no justification for the condition allowing warrantless searches for drugs:

Defendant’s appeal waiver does not foreclose his challenge to the condition of probation requiring that he consent to warrantless searches of his person, vehicle, and home for weapons, drugs, and drug paraphernalia … , which also does not require preservation … . To the extent this condition authorized the Department of Probation to conduct warrantless searches for weapons, we find that it was “reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so” … , “given that he was armed with a sharp object when he committed this violent offense” … .

However, the portion of the condition of probation authorizing warrantless searches by a probation officer for illegal drugs and drug paraphernalia “was not reasonably related to defendant’s rehabilitation” … . Defendant’s crime “did not appear connected to the sale or use of drugs” (id.), he was not “under the influence of any substance” when he committed the offense, and he “had no history of offenses involving substance abuse” … . People v Rivera, 2025 NY Slip Op 03654, First Dept 6-17-25

Practice Point: A wavier of appeal does not preclude a challenge to a probation condition allowing warrantless searches.

Practice Point: A condition of probation allowing warrantless searches for drugs is not appropriate where there is no history of drug offenses.

 

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A MISSING JURY-NOTE-RESPONSE TRANSCRIPT DOES NOT WARRANT REVERSAL UNLESS THE DEFENDANT SHOWS ENTITLEMENT TO A RECONSTRUCTION HEARING AND THE TRANSCRIPT CANNOT BE RECONSTRUCTED, NOT THE CASE HERE; WHEN A MOTION TO VACATE A CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS TURNS ON FACTS OUTSIDE THE RECORD, DENIAL WITHOUT A HEARING IS AN ABUSE OF DISCRETION (CT APP).

The Court of Appeals, remitting the matter for a hearing, in a full-fledged opinion by Judge Singas, determined (1) the absence of the transcript of a response to a jury note did not require reversal, and (2) defendant’s motion to vacate his conviction on ineffective-assistance grounds should not have been denied without a hearing:

Re: missing response-to-a-jury-note transcript:

… [A] missing transcript alone does not entitle a defendant to the extreme remedy of vacatur, but may entitle a defendant to a reconstruction hearing … . To be sure, if a defendant shows that they are entitled to a reconstruction hearing, and that the missing transcript at issue “cannot be reconstructed . . . , there must be a reversal” … . But defendant has not made that showing. Thus, the missing transcript does not warrant reversing defendant’s conviction.

Re: motion to vacate conviction, ineffective assistance:

Where a defendant moves to vacate their conviction under CPL 440.10, the court “must” decide “whether the motion is determinable without a hearing to resolve questions of fact” … . The court “may deny” the motion summarily under enumerated circumstances, including where purported facts essential to the motion are unsupported by “sworn allegations” that “substantiat[e] or tend[ ] to substantiate” those facts … , or where such a fact “is contradicted by a court record or other official document” and “there is no reasonable possibility that [the] allegation is true” … . We review a CPL article 440 motion’s summary denial for abuse of discretion … .

Defendant’s ineffective assistance claim cannot be decided without first resolving questions of fact. Defense counsel’s affirmation, together with the trial record, suggest that counsel may have lacked a strategic or other legitimate basis for one or more of his actions relating to eyewitness identification testimony at the heart of the People’s proof. Whether counsel in fact had such a basis for his conduct turns on factual information outside the present record that should be developed at an evidentiary hearing. People v Salas, 2025 NY Slip Op 03603, CtApp 6-12-25

Practice Point: A missing jury-note-response transcript does not require reversal unless the defendant shows entitlement to a reconstruction hearing and the transcript cannot be reconstructed.​

Practice Point: Where a motion to vacate the conviction on ineffective-assistance grounds turns on facts outside the record, here the strategic or other legitimate basis for counsel’s actions, it is an abuse of discretion to deny the motion without a hearing.

 

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ALL STATEMENTS MADE BY DEFENDANT AFTER HE RESPONDED “NO SIR.” WHEN ASKED IF HE WAS WILLING TO ANSWER QUESTIONS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, vacating his plea, and granting part of the suppression motion, over a partial dissent, determined that all the statements defendant made after he responded “No sir” when asked if he was willing to answer questions should have been suppressed. The dissent argued statements made before defendant was read his Miranda rights should also be suppressed:

Defendant contends that the court erred in refusing to suppress his post-Miranda statements inasmuch as they were made after he invoked his right to remain silent by answering “No, sir” when asked if he would be willing to answer questions after being advised of his Miranda rights. We agree. ” ‘[I]n order to terminate questioning, the assertion by a defendant of [the] right to remain silent must be unequivocal and unqualified’ ” … . Whether a defendant’s “request was ‘unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request[,] including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant’ ” … . Here, we conclude that defendant clearly communicated a desire to cease all questioning indefinitely when he responded “No, sir” to the verbal and written inquiries about whether he was willing to answer questions … .

We further agree with defendant that the court erred in refusing to suppress the holding cell statements, which were also made after defendant unequivocally and unqualifiedly asserted his right to remain silent. Contrary to the People’s assertion that the statements were made spontaneously at a time when the detective was seeking “pedigree information,” we conclude that the People did not establish that the detective’s questions “were reasonably related to the police’s administrative concerns” rather than “a disguised attempt at investigatory interrogation” … . People v Sullivan, 2025 NY Slip Op 03494, Fourth Dept 6-6-25

Practice Point: If a defendant is asked whether he is willing to answer questions and answers “no,” any subsequent statements must be suppressed.​

 

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ALTHOUGH THE EVIDENCE OF DEFENDANT’S CONSTRUCTIVE POSSESSION OF DRUGS AND DRUG PARAPHERNALIA FOUND IN HIS GIRLFRIEND’S APARTMENT WAS DEEMED LEGALLY SUFFICIENT, THE FINDING THAT DEFENDANT CONSTRUCTIVELY POSSESSED THE DRUGS AND PRAPHERNALIA WAS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s bench-trial conviction of criminal possession of a controlled substance and criminally using drug paraphernalia, determined the finding that defendant constructively possessed the drugs and paraphernalia located in his girlfriend’s apartment was against the weight of the evidence. Note that the Fourth Department concluded there was legally sufficient evidence of constructive possession:

… “[W]here there is no evidence that the defendant actually possessed the controlled substance or drug paraphernalia, the People are required to establish that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found” … . The People may establish such constructive possession by circumstantial evidence … , “but a defendant’s mere presence in the area in which the contraband is discovered is insufficient to establish constructive possession” … .

Here, while the People adduced evidence establishing that defendant had a key to the apartment and stayed there “from time to time,” defendant was not a party to the lease and a search of the premises did not reveal anything to “specifically connect[ ] defendant to the places where the contraband was ultimately found” … . Moreover, none of the contraband was in plain view … and, thus, no statutory presumption of defendant’s knowing possession applied … .

We conclude that the weight of the evidence does not support a finding that defendant “exercised dominion or control over the [contraband] by a sufficient level of control over the area in which [it was] found” … . People v Smith, 2025 NY Slip Op 03454, Fourth Dept 6-6-25

Practice Point: Consult this decision for an example of when evidence is legally sufficient to withstand a motion for a trial order of dismissal but a finding based on that same evidence is deemed “against the weight of the evidence.”

 

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DEFENDANT PLED GUILTY TO TWO COUNTS OF CRIMINAL POSSESSION OF A WEAPON; MONTHS LATER THE PEOPLE INDICTED THE DEFENDANT ON A MURDER CHARGE, BASED ON THE SAME FACTS; COUNTY COURT PROPERLY DENIED DEFENDANT’S CPL 40.40 MOTION TO DISMISS THE MURDER INDICTMENT; THERE WAS A STRONG, COMPREHENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, affirming County Court’s denial of defendant’s motion to dismiss the murder indictment (CPL 40.40(2)), determined that the criminal possession of a weapon charges to which defendant pled guilty were not a barrier to a subsequent murder charge based on the same underlying facts. There was a comprehensive dissent:

… [O]n or about November 20, 2021, the 90-year-old victim was shot and killed in her home. When police officers arrived at the scene, defendant, the victim’s granddaughter, was found in the house and appeared to be in distress. Defendant gave the officers conflicting accounts of what had happened to her grandmother but consistently stated that there were guns in the house that defendant had been playing with. A pistol and a revolver were recovered from the home. The People presented evidence to a grand jury relating to the two firearms. The evidence included witness testimony from various police officers about the crime scene, including that the victim appeared to have suffered a gunshot wound to the chest and about statements made to them by defendant. Defendant was indicted on two counts of criminal possession of a firearm (Penal Law § 265.01-b [1]), and she pleaded guilty to both counts. * * *

“CPL 40.40 prohibits a separate prosecution of joinable offenses that arise out of the same transaction and involve different and distinct elements under circumstances wherein no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions” … . Under CPL 40.40 (1), “[w]here two or more offenses are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction, . . . such person may not, under circumstances prescribed in this section, be separately prosecuted for such offenses.” A “criminal transaction” is defined as “conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2]). “When (a) one of two or more joinable offenses [that are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction] is charged in an accusatory instrument, and (b) another is not charged therein, or in any other accusatory instrument filed in the same court, despite possession by the [P]eople of evidence legally sufficient to support a conviction of the defendant for such uncharged offense, and (c) either a trial of the existing accusatory instrument is commenced or the action thereon is disposed of by a plea of guilty, any subsequent prosecution for the uncharged offense is thereby barred” (CPL 40.40 [2] …). Under the facts and circumstances of this case, we conclude that the conduct related to possession of the firearms and that related to the murder involved separate and distinct criminal acts that were not part of the same criminal transaction … . Thus, the murder count was properly charged on a separate accusatory instrument and the People did not violate CPL 40.40.

From the dissent:

… [P]rosecution of the murder charge is barred by CPL 40.40 (2) because it is joinable under CPL 200.20 (2) (a) with the criminal possession of a firearm offenses charged in the prior indictment, and the People possessed legally sufficient evidence to support a murder conviction against defendant when she pleaded guilty to the firearm offenses. Where, as here, “the evidence against a person is in the prosecutor’s hands, [they] may not—as a player in a game of chance—deal out indictments one at a time” … . People v Harris, 2025 NY Slip Op 03419, Fourth Dept 6-6-25

Practice Point: Here defendant pled guilty to two counts of criminal possession of a weapon and was subsequently indicted for murder based on the same facts. The majority upheld the denial of the CPL 40.40(2) motion to dismiss the indictment, concluding the possession-of-a-weapon and murder charges were not part of the same criminal transaction. There was a strong dissent.

 

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