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THE JUDGE’S PROVIDING ERRONEOUS INFORMATION ABOUT THE MAXIMUM SENTENCE DEFENDANT WAS FACING NEED NOT BE PRESERVED FOR APPEAL AND RENDERED THE GUILTY PLEA INVOLUNTARY (THIRD DEPT).

he Third Department, reversing defendant’s conviction by guilty plea, determined the judge’s providing erroneous information about the maximum sentence defendant was facing did not need to be preserved for appeal and rendered the guilty plea involuntary:

… County Court advised [defendant] that, if he elected to proceed to trial and was convicted of all offenses as a second felony drug offender, he faced a sentencing exposure of 36 years in prison rather than the correct, capped term of 30 years … . … [A]s the Court of Appeals recently made clear, where “the court provides the defendant with erroneous information concerning their maximum sentencing exposure that is contrary to the undisputed text of the Penal Law, fails to correct its error on the record, and the defendant has no apparent reason to question the accuracy of that information, the defendant need not preserve a challenge to the voluntariness of the guilty plea on that ground” … . * * *

Although defendant here was no stranger to the criminal justice system and received a reasonable sentencing commitment from County Court, the plea colloquy itself reflects that defendant believed that he had been overcharged and questioned whether he would be convicted if he went to trial. Defendant made clear during the plea colloquy, in fact, that he was only pleading guilty to the indictment because he would rather[*3]”get the high/low of 16/14″ than go to trial and risk “more time in state prison.” Even then, defendant remained conflicted about pleading guilty until the moment he entered his formal plea, asking County Court immediately before he did so to repeat the potential sentencing exposure he faced if he did not “want to go through all of this and [went] to trial.” … .People v Shaw, 2025 NY Slip Op 03358, Third Dept 6-5-25

Practice Point” Here the judge told defendant he was facing 36 years in prison when the actual maximum was 30. That error need not be preserved for appeal and, based on defendant’s remarks and questions at sentencing, was deemed to have rendered defendant’s guilty plea involuntary.

 

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“NO TRESPASSING” AND “PRIVATE PROPERTY” SIGNS WERE POSTED ON THE PROPERTY WHERE DEFENDANT’S VEHICLE WAS PARKED; THEREFORE THE DEPUTY WHO WALKED UP THE DRIVEWAY TO EXAMINE DEFENDANT’S VEHICLE CONDUCTED AN ILLEGAL, WARRANTLESS SEARCH; THE VEHICLE, DEFENDANT’S STATEMENTS AND THE EVIDENCE SEIZED PURSUANT TO SUBSEQUENT SEARCH WARRANTS SHOULD HAVE BEEN SUPPRESSED; THE VEHICLE HAD BEEN INVOLVED IN A FATAL ACCIDENT AND THE DRIVER HAD FLED THE SCENE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and granting the motion to dismiss, determined the posted “No Trespassing” and “Private Property” signs created “a reasonable expectation of privacy” for the driveway of the property where defendant’s vehicle was parked. Therefore, the deputy who walked up the driveway to examine the defendant’s vehicle conducted an illegal search. The vehicle, which had stuck and killed one bicyclist and seriously injured another, as well as the defendant’s statements and evidence seized pursuant to subsequent search warrants, should have been suppressed:

… [T]wo bicyclists were struck by a motor vehicle … . One bicyclist died, and the other was severely injured. The driver fled the scene. After speaking with witnesses and collecting physical evidence from the roadway, the police determined that the involved vehicle was a gray Jeep Cherokee. At some point thereafter, a sheriff’s deputy discovered a vehicle matching this description parked in the driveway on property where defendant resided as a tenant. Because the front of the vehicle was not visible from the street, the deputy walked up the driveway in order to perform a closer inspection. Alongside the driveway were posted signs stating, “No Trespassing” and “Private Property.” The deputy observed blood on, and front-end damage to, the vehicle, consistent with the crash, and radioed his findings to his fellow law enforcement officers. In response, a sheriff’s investigator traveled to the residence. After conferring with the deputy, the investigator talked to the owner of the property and obtained surveillance footage. The investigator then spoke to defendant and secured her consent to search the vehicle. Defendant was taken to a hospital for a blood test and to the State Police barracks for a further interview. The investigator later applied for and obtained two search warrants, one for the vehicle and the other for defendant’s cell phone records. * * *

“Warrantless searches and seizures within the privacy of the home are presumptively unreasonable, subject only to carefully circumscribed exceptions to the warrant requirement” … . That said, a person will not necessarily be entitled to the same protection in a private driveway leading to a home unless he or she has exhibited “some outward manifestation” of a reasonable expectation of privacy in this area … . In that regard, New York law recognizes that the posting of a “No Trespassing” sign on private property constitutes such a manifestation … . Therefore, a police officer seeking to conduct a search on posted property may only do so with a warrant or while operating under a recognized exception to the warrant requirement … . People v Suprunchik, 2025 NY Slip Op 03364, Third Dept 6-5-25

Practice Point: The posting of “No Trespassing” of “Private Property” signs on the curtilage of a residence manifests a reasonable expectation of privacy in the curtilage and triggers the need for a warrant before entering the curtilage. Here the deputy walked up the driveway to inspect a vehicle which the deputy suspected had been involved in a fatal accident. The deputy saw blood on the front of the vehicle. That was an illegal warrantless search requiring suppression of the vehicle, statements made by the defendant, and evidence seized pursuant to subsequent search warrants.

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO SUPPRESS CREDIT CARDS SEIZED DURING THE EXECUTION OF A SEARCH WARRANT WHICH WERE NOT WITHIN THE SCOPE OF THE WARRANT; THE INCRIMINATING NATURE OF THE CREDIT CARDS WAS NOT IMMEDIATELEY APPARENT (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective in failing to move to suppress credit cards seized during the execution of a search warrant. The credit cards were not within the scope of the warrant and there was no showing the incriminating nature of the credit cards was immediately apparent to the officer who seized them:

… [I]n an affirmation in support of the defendant’s CPL 440.10 motion, trial counsel averred that he “failed to consider that the seized credit cards were not described in the search warrant” and that he “failed to research the applicable law on exceptions to the warrant requirement.” Trial counsel admitted that his subsequent failure to move to suppress the credit cards in particular was not the result of a strategic decision and that he would have so moved if he had researched the law concerning the plain view exception to the warrant requirement. Thus, by his own admission, trial counsel’s failure to move for suppression of the credit cards due to their warrantless seizure cannot be characterized as a legitimate strategic decision … .

Defense counsel’s “investigation of the law, the facts, and the issues that are relevant to the case” is “[e]ssential to any representation, and to the attorney’s consideration of the best course of action on behalf of the client” … . Since the defendant established that trial counsel “did not fully investigate the case and did not collect the type of information that a lawyer would need in order to determine the best course of action” …  he demonstrated that he did not receive effective assistance of counsel. Thus, the Supreme Court should have granted the defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction on this basis and ordered a new trial. People v Goodluck, 2025 NY Slip Op 03343, Second Dept 6-4-25

Practice Point: Here defense counsel’s failure to investigate the law regarding the seizure of evidence outside the scope of a search warrant was deemed ineffective assistance requiring a new trial. Note that defense counsel, in support of defendant’s motion, submitted an affirmation admitting the failure to investigate and acknowledging that the omission was not a deliberate defense strategy.

 

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NOTHING IN DEFENDANT’S CRIMINAL HISTORY INVOLVED SUBSTANCE ABUSE OR WEAPONS; THEREFORE THE PROBATION CONDITION THAT DEFENDANT SUBMIT TO SEARCHES OF HIS PERSON, VEHICLE AND HOME WAS STRUCK (FIRST DEPT).

The First Department, striking a probation condition, determined (1) the requirement that defendant submit to warrantless searches of his person, vehicle and home was not appropriate, and (2) the challenge to the probation condition survived defendant’s waiver of appeal:

Defendant’s challenge to the condition of probation requiring that he consent to warrantless searches of his person, vehicle, and home survives the appeal waiver … . “Defendant was not under the influence of any substance or armed with a weapon when he committed the crime of which he was convicted, and he had no history of offenses involving substance abuse or weapons” … . Accordingly, the consent-search condition was not necessary to ensure that he will lead a law-abiding life ( … see Penal Law § 65.10[1]), or reasonably related to defendant’s rehabilitation (see Penal Law § 65.10[2][l]), rendering the condition improperly imposed … . People v Avila, 2025 NY Slip Op 03286, First Dept 6-3-25

Practice Point: Where a defendant’s criminal history does not involve drugs or weapons, requiring defendant to submit to warrantless searches as a condition of probation is not supported.

 

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BECAUSE THE CRIMES INVOLVED ARE NOT “REGISTRABLE OFFENSES” AND NOTHING IN DEFENDANT’S CRIMINAL HISTORY WERE SEX OFFENSES, THE JUDGE SHOULD NOT HAVE IMPOSED SPECIALIZED SEXUAL OFFENDER CONDITIONS UPON DEFENDANT’S PROBATION (THIRD DEPT).

The Third Department, modifying the judgment of conviction, determined the specialized sexual offender conditions should not have been imposed upon defendant’s probation because the underlying offenses had no connection to sex offenses:

Although neither burglary in the third degree (see Penal Law § 140.20), the crime for which defendant was indicted, nor criminal trespass in the second degree (see Penal Law § 140.15 [1]), the crime for which defendant was convicted, qualify as registerable offenses under Correction Law § 168-a (2), we previously have held that it may be “proper to impose sex offender conditions in cases which do not technically qualify as sex offender cases, . . . so long as the conditions imposed are reasonably related to the defendant’s rehabilitation, are reasonably necessary to insure that the defendant will lead a law-abiding life, and are necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant” … . That said, upon reviewing defendant’s criminal history and considering the circumstances underlying the crime of conviction, we agree with defendant that the specialized sexual offender conditions imposed by County Court do not meet that standard.

Regardless of whether defendant completed sex offender treatment prior to being successfully discharged from probation in Florida in September 2000, the fact remains that — in the nearly 25 years that have elapsed since then — defendant has not been charged with any additional sex offenses; indeed, prior to the underlying trespass incident in March 2023, it appears that defendant — with the exception of an unspecified “criminal registration” offense in Florida in November 2000 — was not charged with any new crimes at all. Additionally, the criminal trespass conviction did not stem from defendant entering a school, no children were present at the time of the offense (or otherwise involved or implicated in its commission) and the underlying crime was not even tangentially related to either a sex or child welfare offense … . Under these circumstances, County Court abused its discretion in imposing the specialized sexual offender conditions upon defendant’s probation. People v Rhodehouse, 2025 NY Slip Op 03228, Third Dept 5-29-25

Practice Point: Although specialized sexual offender conditions can be imposed upon probation where the underlying crimes are not sex offenses, here it was an abuse of discretion to do so, based upon the absence of sex offenses from defendant’s criminal history.

 

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THE EVIDENCE THAT DEFENDANT HAD SEXUALLY ASSAULTED THE VICITM’S TWO SISTERS WAS PROPERLY ADMITTED UNDER MOLINEUX IN THIS RAPE PROSECUTION; DEFENDANT ADMITTED HAVING ROUGH SEX WITH THE VICTIM AND CLAIMED IT WAS CONSENSUAL; THE PRIOR CRIME EVIDENCE WAS NOT ADMITTED TO PROVE DEFENDANT HAD SEX WITH THE VICTIM. BUT RATHER TO PROVE HIS STATE OF MIND, HIS INTENT TO HAVE NONCONSENSUAL SEX BY FORCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over two concurrences, affirming defendant’s rape conviction, determined the evidence defendant had sexually assaulted the victim’s sisters was admissible under Molineux. Defendant admitted having sex with the victim, characterizing it as consensual rough sex. The evidence of the prior assaults on the victim’s sisters was not offered to prove defendant had sex with the victim, but rather to prove the defendant’s state of mind, his intent:

​This Court has consistently deemed Molineux evidence admissible where a defendant offers a theory of defense that assumes the underlying conduct but disputes that the defendant possessed the requisite guilty intent or state of mind in the commission of said conduct … . This rule makes sense because the focus in that situation “is not on the actual doing of the act, for the act is either conceded or established by other evidence. Rather, the element in issue is the actor’s state of mind, and evidence of other similar acts is admitted under this exception because no particular intent can be inferred from the nature of the act committed” … .​ * * *​

Defendant presented a theory at trial that the sexual act was consensual. Thus, the primary question for the jury was not whether sexual intercourse occurred but whether defendant possessed the requisite intent: did he intend to have sexual intercourse with the victim without her consent and did he intend to use forcible compulsion to do so. That defendant had previously sexually assaulted the victim’s sisters—defendant’s other sisters-in-law—under hauntingly similar circumstances “has obvious relevance as tending to refute defendant’s claim of an innocent state of mind” … . It tends to make “the innocent explanation improbable” … .

Additionally, the unique facts of this case render the Molineux evidence relevant as background information pertaining to the nature of defendant’s relationship with the victim and the dynamics of the family at large … . During the charged rape, defendant stated: “I am waiting for all your sister. I want to do like this. So I am waiting for this time.” Isolated, this statement may leave the jury puzzled. The Molineux evidence fills that gap and provides clarity and context for the jury. Further, defendant threatened to rape one of A.A.’s sisters if she told anyone what defendant did, and A.A. did disclose defendant’s assault on her to multiple members of the family, making evidence of that assault particularly illuminating … . Lastly, defense counsel suggested during opening argument that this family may have been engaging in “inner family marriages,” thus rendering defendant’s relationships with the other women in the family pertinent. People v Hu Sin, 2025 NY Slip Op 03100, CtApp 5-22-25

Practice Point: Consult this decision for clear examples of when evidence of prior similar crimes is admissible under Molineux. Here defendant claimed the rough sex with the victim was consensual. Evidence of prior sexual assaults on the victim’s sisters was admissible to prove defendant intended to have sex by force without the victim’s consent.

 

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CLAIMANT’S SEXUAL ABUSE CONVICTION WAS VACATED AFTER THE ALLEGED VICTIM RECANTED; CLAIMANT BROUGHT AN ACTION AGAINST THE STATE PURSUANT TO COURT OF CLAIMS ACT SECTION 8-B FOR UNJUST CONVICTION AND IMPRISONMENT; THE COURT OF CLAIMS PROPERLY FOUND CLAIMANT DID NOT PROVE HIS INNOCENCE BY CLEAR AND CONVINCING EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, affirming the dismissal of claimant’s action for unjust conviction and imprisonment, determined claimant, whose sexual abuse conviction was vacated after the alleged victim recanted, did not prove his innocence by clear and convincing evidence. The opinion is fact-specific and cannot be fairly summarized here:

Tuckett filed this claim against the State, seeking damages for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b. Tuckett needed to “prove by clear and convincing evidence” the remaining two elements of his claim: that “he did not commit any of the acts charged in the accusatory instrument” and that “he did not by his own conduct cause or bring about his conviction” (Court of Claims Act § 8-b [5] [c], [d]). * * *

A claimant who asserts a damages claim against the State under section 8-b must prove their innocence by clear and convincing evidence. That task “is certainly not a simple one” … . After hearing from and observing Tuckett and N.M. (the alleged victim), the Court of Claims determined that the accusations were credible and the recantation was not, and that Tuckett therefore failed to carry his burden. We see no reversible error in that decision. Tuckett v State of New York, 2025 NY Slip Op 03099, CtApp 5-20-25

Practice Point: An action against the state for unjust conviction and imprisonment pursuant to Court of Claims Act section 8-b requires that the claimant prove his or her innocence by clear and convincing evidence. Here the testimony of the alleged victim, who had recanted his allegations of sexual abuse, was not enough.

 

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DEFENDANT’S FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO COULD NOT SAY HE WOULD NOT HOLD DEFENDANT’S FAILURE TO TESTIFY AGAINT HIM SHOULD HAVE BEEN GRANTED; A POLICE OFFICER WHO SPENT ONLY 10 OR 15 MINUTES WITH THE DEFENDANT SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY THE DEFENDANT IN A VIDEO, DESPITE THE CHANGE IN DEFENDANT’S APPEARANCE (SECOND DEPT).

The Second Department, reversing defendant’s convictions and ordering a new trial, determined defendant’s for cause challenge to a prospective juror who said he would hold defendant’s failure to testify against him should have been granted. Because there will be a new trial, the Second Department noted that a police officer who had limited contact with the defendant should not have been allowed to identify the defendant in a video:

The prospective juror maintained that he was unable to “promise” that his decision would not be affected if the defendant did not testify at trial. Since the prospective juror made statements that cast doubt on his ability to render an impartial verdict under the proper legal standards and did not, upon further inquiry, provide unequivocal assurances that he would be able to render a verdict based solely upon the evidence adduced at trial, the Supreme Court should have granted the defendant’s for-cause challenge … .

… [W]e note that the Supreme Court improvidently exercised its discretion in allowing a police detective to identify the defendant as the individual depicted in a surveillance video. Generally, “‘lay witnesses must testify only to the facts,’ and not to their opinions and conclusions drawn from the facts,’ as it is the jury’s province ‘to draw the appropriate inferences arising from the facts'” … . In determining whether to permit this testimony, a court must consider “whether the witness has had sufficient contact with the defendant to achieve a level of familiarity that renders the lay opinion helpful” … . In making this assessment, courts may consider (1) the witness’s general level of familiarity with the defendant’s appearance, (2) whether the witness’s familiarity spanned an extended period of time and variety of circumstances, (3) whether the witness was familiar with the defendant’s appearance at the time the surveillance footage was taken, and (4) whether the witness was familiar with the defendant’s customary manner of dress or clothing (see id. at 648-649). Here, there was no basis for the court to conclude that the police detective was more likely than the jury to correctly determine whether the defendant was depicted in the surveillance video … . The police detective testified that he spent a total of 10 to 15 minutes with the defendant. While there was testimony that the defendant’s appearance had changed prior to the trial, through weight loss and cutting his hair, “the record is devoid of any other circumstances suggesting that the jury——which had ample opportunity to view [the] defendant——would be any less able than the detective to determine whether [the] defendant was, in fact, the individual depicted in the video” … . People v Williams, 2025 NY Slip Op 03087, Second Dept 5-21-25

Practice Point: A challenge to a prospective juror who cannot state unequivocally he or she would not hold defendant’s failure to testify against the defendant must be granted.

Practice Point: A police officer who is allowed to identify the defendant in a video is offering an opinion, not facts. Here the officer had spent only 10 to 15 minutes with the defendant and therefore was not qualified to offer an opinion on the identity of the person depicted in the video.

 

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HERE DEFENDANT MADE A TIMELY REQUEST TO REPRESENT HIMSELF WHICH WAS DENIED WITHOUT ANY INQUIRY; DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion (three judges), reversing defendant’s convictions and ordering a new trial, determined that the judge’s failure to conduct an inquiry before denying defendant’s request to represent himself violated his constitutional right to self-representation:

A defendant has a constitutional right to proceed pro se (see US Const Amend VI; NY Const, art I, § 6; see also CPL 170.10 [6], 180.10 [5], 210.15 [5] [codifying a defendant’s constitutional right to self-representation]). Defendant invoked that right when he informed Supreme Court that he “would like to represent [him]self” at his upcoming trial. People v McIntyre (36 NY2d 10 [1974]) and its progeny required that the court make a searching inquiry into defendant’s unequivocal and timely request to proceed pro se, to determine whether that request was knowing, voluntary, and intelligent. Contrary to that rule, the court immediately denied defendant’s request without inquiry, and it expressly refused to consider any further request until the day of trial. The court’s failure to inquire into defendant’s request violated his constitutional right to self-representation. Therefore, we reverse and grant defendant a new trial.

On June 4, 2018, the parties appeared for trial. * * * This colloquy followed:

THE DEFENDANT: I’m going to go cocounsel.
THE COURT: I can’t hear you.
THE DEFENDANT: Cocounsel. I’m going to go cocounsel.
THE COURT: Cocounsel?
THE DEFENDANT: Yes.
THE COURT: What is that?
THE DEFENDANT: Meaning I’m going to represent myself in this case.
THE COURT: You mean pro se.
THE DEFENDANT: Yes. I will be going pro se at trial. I will be representing myself acting as my own.
THE COURT: You made no application before me.
THE DEFENDANT: I never said I wanted a trial by jurors. I never told this individual that I wanted a trial by jurors.
THE COURT: You know, Mr. Lewis, I’m assuming now you’re trying to play games with this court. . . . I’ll continue with this trial. If you want to speak to [defense counsel] about certain issues, I’ll hear [defense counsel] tomorrow morning.”

The following morning, the court invited defendant to raise any issues before proceeding with jury selection. Defendant asserted again that he did not want defense counsel to represent him, alleging that counsel was ineffective, had a conflict of interest, and was not working on his behalf. The court only responded, “[o]kay. Nicely done,” and continued the proceeding. People v Lewis, 2025 NY Slip Op 03011, CtApp 5-20-25

Practice Point: A defendant has a constitutional right to self-representation. A judge must conduct a “searching inquiry” upon a timely request.​

 

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THE PRESENTENCE INTERVIEW WAS CANCELLED DUE TO TECHNICAL DIFFICULTIES; THEREFORE THE PRESENTENCE REPORT WAS DEVOID OF INFORMATION ABOUT DEFENDANT’S EDUCATION, EMPLOYMENT, HEALTH STATUS, MENTAL HEALTH AND DEFENDANT’S MOTIVE; ALTHOUGH DEFENDANT WAS SENTENCED IN ACCORDANCE WITH THE PLEA AGREEMENT, THE DEFICIENT PRESENTENCE INVESTIGATION AND REPORT REQUIRED VACATION OF THE SENTENCE (FIRST DEPT).

The First Department, vacating defendant’s negotiated sentence, determined the failure to interview the defendant before creating the presentence report  was tantamount to the failure to conduct the mandatory presentence investigation. The defendant did not take any action to avoid the presentence interview which was scheduled but cancelled due to technical difficulties:

At sentencing, defense counsel confirmed that the presentence report was prepared without any interview because of technical difficulties. The court remarked this was “not unusual,” but directed that defendant be arraigned for sentence. In response to the court’s invitation for the parties to address any issues relevant to sentence, defense counsel stated only that he relied on the promised sentence. The court proceeded to impose sentence with no further discussion of the presentence report.

Presentence investigations of persons convicted of felonies are statutorily mandated, and a court may not pronounce sentence until it has received a written report of such an investigation (see CPL 390.20[1] …). The presentence report may be “the single most important document at both the sentencing and correctional levels of the criminal process” … , as it contains multiple categories of information concerning the defendant’s background and the subject offense … .

Because there was no presentence interview, the presentence report in this case was seriously deficient. The report was devoid of information regarding defendant’s education, employment history, health status, and mental health, each a statutorily prescribed category … . The report also noted that it had no information as to defendant’s motive. People v Pizzaro, 2025 NY Slip Op 03025, First Dept 5-20-25

Practice Point: A presentence report which is incomplete because the defendant was never interviewed requires vacation of the sentence, notwithstanding that the sentence was in accordance with the plea agreement.

 

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