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THE MAJORITY CONCLUDED THE COURT SHOULD USE ITS AUTHORITY TO DISMISS THE JUVENILE DELINQUENCY PETITION IN THE INTEREST OF JUSTICE, AN EXTRAORDINARY REMEDY WHICH SHOULD BE EMPLOYED SPARINGLY, FACTORS EXPLAINED (THIRD DEPT).

The Third Department, over a concurring decision and an extensive dissent, determined the juvenile delinquency petition should be dismissed in the interest of justice. The concurrence argued the dismissal should be based upon ineffective assistance of counsel. The dissent argued this difficult situation was properly handled:

Although we are mindful that “[d]ismissal in the furtherance of justice is an extraordinary remedy that must be employed sparingly,” it is our opinion that this is one of “those rare cases where there [are] compelling factor[s] which clearly demonstrate[ ] that prosecution [resulted in an] injustice” .. . … [A]ttempted assault in the third degree, a class B misdemeanor, is not serious … . … [T]he DSS caseworker was not seriously injured. * * * … [A]t the time of the attempted assault, respondent was in DSS’ care and custody because her mother was deceased and her grandmother, who subsequently adopted respondent, ultimately surrendered her rights. Respondent has a reportedly low IQ and a history of mental illness which was so severe that Family Court ordered a capacity evaluation … . Indeed, respondent had been brought to the hospital emergency room based on what was legally designed to be a temporary Mental Hygiene Law § 9.41 hold. Respondent remained in what was essentially a lock and key detention in the hospital, mostly in the emergency room, under dubious circumstances for an outrageous period of six months.

… Respondent already had numerous strikes against her, not only her lack of a parent/guardian and her serious mental health challenges, but also a previous juvenile delinquency adjudication. This additional juvenile delinquency finding is a red flag that will undoubtedly hinder opportunities and could cause difficulty for respondent should she seek mental health assistance in the future. Simply put, respondent needs no additional baggage, especially not baggage stemming from a juvenile delinquency petition that was admittedly filed and continued because of the difficulty of placing her in a suitable setting … . Matter of A. WW., 2025 NY Slip Op 02377, Third Dept 4-24-25

Practice Point: Consult this decision for a detailed analysis of an appellate court’s authority under the Family Court Act to dismiss a juvenile delinquency petition “in the interest of justice.”

 

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THERE WAS NO PROOF DEFENDANT WAS NOTIFIED OF THE SORA RISK-LEVEL ASSESSMENT HEARING AND VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT; THE DUE PROCESS ISSUE NEED NOT BE PRESERVED FOR APPEAL BECAUSE DEFENDANT DID NOT HAVE THE OPPORTUNITY TO OBJECT; LEVEL-THREE RISK-LEVEL ASSESSMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing County Court’s level-three SORA risk-level assessment and remitting the matter, determined the People did not demonstrate defendant waived his right to be present at the virtual SORA risk-assessment hearing. The judge relied on an email from the Department of Corrections and Community Supervision stating that defendant “is waiving his right to be present in court,” which was not sufficient proof defendant was notified of the hearing and his rights and voluntarily waived his rights. Although defense counsel did not object, the issue did not require preservation for appeal because the defendant had “no practical ability to object” to the due process error:

The record does not establish that defendant was advised of the hearing date, the right to be present or of the consequences of failing to appear and/or participate. County Court’s passing remark at the outset of the hearing that defendant had been “served” and did not wish to be present did not demonstrate such advisement or the basis for finding a waiver, and defense counsel did not represent that he had provided such advisements to defendant, that defendant was aware of his rights or that defendant had “expressed a desire to forego his presence at the hearing” … .

Although the People submitted a July 19, 2022 email correspondence indicating that an order to produce defendant for the SORA hearing was sent by County Court to the facility where defendant was apparently incarcerated, the responsive email from a Department of Corrections and Community Supervision employee stated only that defendant “is waiving his right to be present in court” for the SORA hearing, which was insufficient to establish that defendant was advised of the hearing date, his right to participate remotely or the consequences of failing to appear or participate. As such, the record fails to establish that defendant voluntarily waived his right to participate in the hearing, where County Court may have had the opportunity to assess any cognitive impairment and its impact, if any, on the appropriate risk level classification. Therefore, without expressing any opinion as to the appropriate risk level, the order must be reversed and the matter remitted to County Court for a new risk level assessment hearing and a new determination, preceded by the required notice (see Correction Law § 168-n [3]). People v Santiago, 2025 NY Slip Op 02381, Thrid Dept 4-24-25

Practice Point: Here an email from the Department of Corrections stating defendant “is waiving his right to be present in court” was deemed insufficient to prove defendant was notified of the SORA risk-level-assessment hearing and voluntarily waived his right to be present, a due process violation.

Practice Point: Although defense counsel did not object to the hearing being held in defendant’s absence, the issue need not be preserved for appeal because defendant had “no practical ability to object.”

 

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ONLY THE COURT CHARGED WITH EMPANELING THE GRAND JURY CAN ORDER THE RELEASE OF THE GRAND JURY MINUTES; IN ORANGE COUNTY THE COURT CHARGED WITH EMPANELING GRAND JURIES IS COUNTY COURT; THEREFORE THE PETITON FOR A WRIT OF PROHIBITION PROHIBITING A SUPREME COURT JUSTICE FROM ORDERING THE RELEASE OF THE GRAND JURY MINUTES WAS GRANTED (SECOND DEPT).

The Second Department granted a petition for a writ of prohibition to prohibit a Supreme Court justice from ordering the release of grand jury minutes to the plaintiff in a civil action. Only the court charged with empaneling the grand jury, in this case County Court, can order release of the minutes:

The orders … directing the release of certain grand jury minutes in the subject criminal action and directing the clerk of the court to provide those minutes to the plaintiff’s counsel in the underlying civil action, are subject to prohibition for exceeding the Supreme Court’s authorized powers, as “only the court in charge of a Grand Jury may release testimony from the secrecy requirements of CPL 190.25(4)” … . In Orange County, only terms of the County Court have been charged with the empaneling of grand juries at the times relevant to this proceeding … , and as such, that was the court in charge of the grand jury in the subject criminal action, and the only court authorized to release those grand jury minutes … . Matter of Hoovler v Vazquez-Doles, 2025 NY Slip Op 02204, Secpmd Dept 5-16-25

Practice Point: If a Supreme Court justice issues an order which exceeds that court’s authorized powers, here an an order to release grand jury minutes to a plaintiff in a civil action, a petition for a writ of prohibition will be granted.

 

CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF A FIREARM ARE INCLUSORY CONCURRENT COUNTS; THE CRIMINAL POSSESSION OF A FIREARM CONVICTION WAS VACATED (SECOND DEPT).

The Second Department, vacating the criminal possession of a firearm conviction, determined criminal possession of a weapon second degree and criminal possession of a firearm are inclusory concurrent counts:

CPL 300.30(4) provides that “[c]oncurrent counts are ‘inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater” … . CPL 300.40(3)(b) provides, in relevant part, that with respect to inclusory concurrent counts, “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” … . Here, the defendant was convicted of criminal possession of a weapon in the second degree and criminal possession of a firearm (Penal Law §§ 265.03[1][b]; 265.01-b[1]). Because the charge of criminal possession of a weapon in the second degree and the charge of criminal possession of a firearm are inclusory concurrent counts, the conviction of criminal possession of a firearm, as well as the sentence imposed thereon, must be vacated, and that count of the indictment must be dismissed … . People v Walker, 2025 NY Slip Op 02225, Second Dept 4-16-25

Practice Point: Criminal possession of a weapon second degree and criminal possession of a firearm are inclusory concurrent counts requiring vacation of the criminal possession of a firearm conviction.

 

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UNLIKE A LEVEL-ONE OR LEVEL-TWO STREET STOP, A LEVEL-THREE STREET STOP JUSTIFIES POLICE PURSUIT, EVEN IF THE REASON FOR THE STOP, HERE AN APPARENT IMPENDING ASSAULT, WAS DISSIPATED BY THE SUSPECT’S FLIGHT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, affirming the appellate division, determined the police were justified in pursuing the defendant after a level three street stop, even though, at the time of the pursuit, the initial reason for the stop, an apparent impending attack on a pedestrian, had dissipated:

We have previously held that an individual’s flight from a level one or two police encounter, without more, does not provide the reasonable suspicion necessary to pursue them (see People v Holmes, 81 NY2d 1056, 1058 [1993]; People v May, 81 NY2d 725, 728 [1992]; see generally People v De Bour 40 NY2d 210 [1976]). We now hold that when a suspect flees during a lawful level three stop founded on reasonable suspicion of criminal activity, police may pursue the suspect.

… At the suppression hearing, Officer Kyle Eisenhauer of the Rochester Police Department testified that, on the night of the arrest, he was in uniform in an unmarked patrol vehicle with his partner, Officer Jeremy Nellist. The two were driving behind a sedan when a woman on the sidewalk threw a glass bottle at the sedan, which then came to a stop in the middle of the street. Defendant exited the driver’s door of the sedan and “in a very aggressive manner” began yelling at the woman and approached her with clenched fists. According to Eisenhauer, “[i]t appeared [that defendant] was . . . about to attack” the woman. Eisenhauer and Nellist exited their patrol car and told defendant to stop, and defendant “stopped and looked in [their] direction.” The uniformed officers were about 25 feet away from defendant without their guns drawn. Defendant “began to back away, and then quickly turned and began digging in the front of his waistband and running” away from the officers, leaving his car in the middle of the street with the driver’s door open. The officers followed in pursuit. * * *

We reject the notion that a suspect can legally flee a level three stop so long as their flight dissipates the reasonable suspicion of the crime that initially gave rise to the stop. People v Cleveland, 2025 NY Slip Op 02144, CtApp 4-15-25

Practice Point: If the police have reasonable suspicion of criminal activity at the time of a level three street stop, they may pursue the fleeing suspect, even if the initial reason for the stop (here an apparent impending assault) is dissipated by the flight. In contrast, flight from a level one or level two street stop does not justify pursuit.

 

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CRIMINAL POSSESSION OF STOLEN PROPERTY FOURTH AND FIFTH DEGREE ARE LESSER INCLUDED OFFENSES OF CRIMINAL POSSESSION OF STOLEN PROPERTY THIRD DEGREE; UNAUTHORIZED USE OF A VEHICLE, HOWEVER, IS NOT BECAUSE THE CRIMINAL POSSESSION STATUTE DOES NOT REQUIRE POSSESSION OF A VEHICLE (FIRST DEPT).

The First Department, in this juvenile delinquency proceeding, determined the criminal possession of stolen property fourth and fifth degree convictions should have been vacated as lesser included offenses of criminal possession of stolen property third degree. The court noted that unauthorized use of a vehicle is not a lesser included offense of criminal possession of stolen property because the criminal-possession statute does not require possession of a motor vehicle:

“When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a ‘lesser included offense'” (CPL 1.20[37]). However, appellant’s argument that unauthorized use of a vehicle is a lesser included offense of criminal possession of stolen property is incorrect. It is possible to criminally possess stolen property without also committing, by the same conduct, the crime of unauthorized use of a vehicle, because the criminal possession statute does not require possession of a motor vehicle as the other statute does … . Matter of D.P. 2025 NY Slip Op 02132 First Dept 4-10-25

Practice Point: Consult this decision for some insight into what is, and what is not, a lesser included offense.​

 

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THE JUDGE PRONOUNCED A FELONY SENTENCE WITHOUT AN UPDATED AND COMPLETE PRESENTENCE REPORT; SENTENCE VACATED (FIRST DEPT).

The First Department, vacating defendant’s sentence after his period of incarceration was served but before his postrelease supervision was complete, determined the absence of a complete and updated presentence report invalidated the sentence:

Where a person is convicted of a felony, the court must order a presentence investigation of the defendant and it may not pronounce sentence until it has received a written report of that investigation (CPL 390.20[1] …). The presentence report must be current and contain updated information pertinent to the imposition of a proper sentence … . We hold that the presentence report in this case was inadequate, as it omitted crucial information regarding defendant’s history of trauma, mental health and substance abuse issues and failed to include a victim impact statement, among other things (CPL 390.30). We particularly note that defendant had not been interviewed prior to the report’s issuance and that Probation requested an adjournment of sentencing so that the newly assigned case officer could conduct the investigation.

Defendant, who was not represented by his assigned counsel at sentencing, did not waive his entitlement to a current, updated report by failing to affirmatively object to the presentence report’s sufficiency … . People v Camacho, 2025 NY Slip Op 02136, First Dept 4-10-25

Practice Point: A judge cannot pronounce sentence for a felony before receiving an updated and complete presentence report.

 

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THE ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH “FAILURE TO PROVIDE NECESSARY SUSTENANCE” FOR A DOG, AN A MISDEMEANOR, WAS NOT SUPPORTED BY NONHEARSAY FACTUAL ALLEGATIONS; INSTRUMENT DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the accusatory instrument charging defendant with “failure to provide necessary sustenance” for a dog was facially insufficient because no nonhearsay factual allegations supporting the charge were provided: The statute at issue is Agriculture and Markets Laws (AML) section 353:

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” … . We evaluate the accusatory instrument here under the standard applicable to a misdemeanor information. In accordance with CPL 100.40, “[a] misdemeanor information must set forth ‘nonhearsay allegations which, if true, establish every element of the offense charged’ ” … . This requirement is jurisdictional, and an accusatory instrument that falls short must be dismissed … . “[T]he test for whether a flaw in an accusatory instrument is jurisdictional is. . . whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” … . * * *

… [A]n accusatory instrument charging a violation of section 353 need not include documentation from a veterinarian, especially in those cases where the conditions are visible or palpable. The investigator did not allege any facts in support of [an alleged failure to provide veterinary care]. The investigator also failed to describe the conditions under which he first observed [the dog]—splayed in the middle of a traffic lane and barely able to move—which might have allowed for an inference that the dog was mistreated or neglected to the point of being in extremis.

In sum, the factual allegations and inferences to be drawn from the accusatory instrument are insufficient to “establish every element of the offense charged” … , that defendant deprived [the dog] of sustenance in violation of AML section 353. People v Farrell, 2025 NY Slip Op 02100 CtApp 4-10-25

Practice Point: Consult this opinion for some insight into the nature of the nonhearsay factual allegations which must be included in an accusatory instrument charging an A misdemeanor, here a violation of the Agriculture and Markets Law section 353 (failure to provide necessary sustenance for a dog).​

 

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THE CHARGES STEMMED FROM A DEMONSTRATION SPARKED BY THE POLICE KILLING OF GEORGE FLOYD; DEFENDANT THREW TWO MOLOTOV COCKTAILS TOWARD POLICE OFFICERS; THE EVIDENCE DEFENDANT ENGAGED IN “TERRORISM” WAS LEGALLY INSUFFICIENT; SENTENCE REDUCED (THIRD DEPT).

The Third Department, vacating defendant’s “terrorism” conviction and significantly reducing his sentence, in a full-fledged opinion by Justice McShan, determined the “attempted aggravated assault upon a police officer as a crime of terrorism” conviction was not supported by legally sufficient evidence. The charges stemmed from a demonstration sparked by the police killing of George Floyd in 2020. The demonstration turned violent and defendant was captured on video throwing two Molotov cocktails toward police officers:

… “[T]he statute must be applied only in a manner consistent with the unique meaning of the term terrorism by requiring proof of conduct aimed at influencing, as relevant here, government action” … . More specifically, that the conduct was taken with the intent to influence a policy. The term “policy,” undefined in the statute (see Penal Law § 490.05), is readily understood as “[a] standard course of action that has been officially established by an organization, business, political party” … . In that sense, the phrase “influence the policy of a unit of government” encompasses a different intent on the part of a defendant that is more specific to a defined policy … . This is all the more evident when considering the clause that follows, as the interference with law enforcement duties referenced by the People is more aptly characterized as conduct that would “affect the conduct of a unit of government,” which contains [*5]the additional requirement that it be accomplished “by murder, assassination or kidnapping” (Penal Law § 490.25 [1]). The import of this distinction is that the reference to “policy” utilized in Penal Law § 490.25 (1) requires more than a belief that the government is engaging in some form of misconduct; in this case, systemic racism or police brutality.

… [T]he fact that defendant was motivated by his animus toward law enforcement does not in turn establish that he was attempting to influence any policy, either defined or perceived. People v Parker, 2025 NY Slip Op 02108, Third Dept 4-10-25

Practice Point: Consult this decision for a discussion of the proof requirements for “terrorism” in the context “assault upon a police officer as a crime of terrorism.”

 

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DEFENSE COUNSEL ALLOWED EVIDENCE PRECLUDED BY A SANDOVAL RULING TO COME IN, AND DID NOT OBJECT TO HEARSAY WHICH REFUTED DEFENDANT’S ALIBI; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective for allowing the introduction of evidence which violated a Sandoval ruling. The court ruled the People could not introduce evidence of defendant’s rape conviction. But the People elicited testimony from defendant’s parole officer (Kellett) indicating defendant was a sex offender. In addition, hearsay testimony which refuted an alibi defendant did not attempt to present at trial was allowed in without objection by defense counsel:

Kellett’s testimony effectively circumvented the court’s earlier Sandoval ruling precluding the introduction of defendant’s past rape conviction by allowing her to testify that defendant was a sex offender … . The People had already affirmed on the record that they would not seek to introduce the basis for defendant’s parole supervision, and defendant had consented to this so long as the testimony be restricted and a limiting instruction provided. The details offered by Kellett were not necessary to establish defendant’s status as a parolee, as she could have merely testified that defendant was under parole supervision without elaborating upon his status as a sex offender. Despite the crimes charged not being of a sexual nature, the testimony in question introduced highly prejudicial information that “ha[d] no purpose other than to show that . . . defendant is of a criminal bent or character and thus likely to have committed the crime[s] charged” … . However, trial counsel made no objection to this testimony or, in the alternative, no request for a curative instruction. Thus, the prejudice resulting from this testimony was not dissipated “by promptly and clearly advising the jury that the comments were improper and should be completely disregarded” … . * * *

Although we find this error on the part of trial counsel to have, by itself, deprived defendant of a fair trial … , we would be remiss not to briefly address trial counsel’s failure to object to law enforcement testimony describing interviews with individuals who refuted defendant’s previously claimed alibi. This testimony presented arguably inadmissible evidence of a hearsay nature, which defendant claims presented a Crawford violation … . However, trial counsel lodged no objection, essentially allowing defendant to be impeached regarding an alibi he did not attempt to present at trial. People v Franklin, 2025 NY Slip Op 01975, Third Dept 4-3-25

Practice Point: Here a Sandoval ruling excluded evidence defendant had been convicted of rape but the People, through defendant’s parole officer, introduced evidence defendant was a sex offender. Defense counsel did not object. The failure to object was deemed ineffective assistance requiring a new trial.

 

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