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

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

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

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

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

 

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

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

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

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

 

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

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

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

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

 

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

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

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

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

 

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THE FAMILY OFFENSE OF HARASSMENT REQUIRES A COURSE OF CONDUCT; A SINGLE, ISOLATED INCIDENT IS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined the evidence of the family offense of harassment was not sufficient. A single isolated incident is not enough:

” … [A] person commits the family offense of harassment in the second degree when, with intent to harass, annoy, or alarm another person, he or she ‘engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose'” … . “[T]here is no question that an isolated incident cannot support a finding of harassment” … .

Here, contrary to the Family Court’s finding, the father failed to establish by a fair preponderance of the evidence that the mother committed the family offense of harassment in the second degree, as the father failed to identify more than an isolated incident (see Penal Law § 240.26[3] …). The father testified to only one isolated incident involving a verbal dispute that he had with the mother and her husband … . That dispute occurred on the driveway of the father’s home when the mother and her husband dropped off the child at the father’s home, instead of at a police station, which the father claimed was the agreed upon exchange location. Matter of Martinez v Toole, 2025 NY Slip Op 03721, Second Dept 6-18-25

Practice Point: The family offense of harassment requires proof of a course of conduct, a single incident does not suffice.​

 

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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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