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THE STREET STOP OF DEFENDANT WAS INVALID UNDER BOTH THE US SUPREME COURT’S “HILL VS CALIFORNIA” “MISTAKEN ARREST” CRITERIA AND THE NYS “DEBOUR” STREET STOP CRITERIA; THE WEAPON DISCARDED BY DEFENDANT AS HE FLED SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a three-judge dissent, determined the parole investigators did not have “reasonable suspicion” that the defendant was in fact the parole absconder for whom they had a warrant when they pulled along side the defendant on the street in an unmarked car. The parole investigators wore civilian clothes. The defendant, who was not the parole absconder, ran and threw away a firearm. He ultimately pled guilty to attempted criminal possession of a firearm. The defendant was wearing a ski mask so the investigators could not see his face when they pulled along side of him:

Supreme Court denied suppression, applying a rule for mistaken arrests derived from the U.S. Supreme Court’s decision in Hill v California (401 US 797 [1971]). The court credited the testimony of the investigator and his partner and held that the defendant’s physical similarities with the absconder, coupled with his “immediate” flight upon being approached, supported the officers’ reasonable belief that the defendant was the target of their warrant. * * *

The defendant and the People disagree about whether we should evaluate the investigators’ pursuit and arrest under De Bour or Hill. * * *

We need not decide which of the tests should control, because in this scenario we do not perceive a meaningful difference between Hill’s requirement of a reasonable mistaken belief and De Bour’s level three standard of reasonable suspicion. … Under Hill, the arresting officer must provide “reasonable, articulable grounds to believe that the suspect is the intended arrestee” … . By the same token, our De Bour caselaw specifies that reasonable suspicion requires an officer to point to “specific and articulable facts which, along with any logical deductions, reasonably prompted th[e] intrusion” … . Thus, when it comes to evaluating this particular scenario, the tests essentially ask the same question: whether the totality of the circumstances, including the defendant’s appearance and any additional observations about their behavior, justifies the resulting police-citizen encounter.  * * *

Nothing in the record here demonstrates that the defendant could have known that he was fleeing from law enforcement. People v Jones, 2026 NY Slip Op 01447, CtApp 3-17-26

Practice Point: Here the US Supreme Court’s “mistaken arrest” criteria for a valid street stop and the NYS “Debour” criteria for a valid street stop required the same level of “reasonable suspicion.”

 

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THE FOURTEEN-MONTH PRE-INDICTMENT DELAY DID NOT VIOLATE DEFENDANT’S RIGHT TO A SPEEDY TRIAL (CT APP)

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the 14-month pre-indictment delay did not deprive defendant of his constitutional right to a speedy trial. Defendant was incarcerated when he threw urine on a corrections officer. The court analyzed the facts under the “Taranovich” criteria (37 NY2d 442):

This Court analyzes due process claims predicated on a pre-indictment delay by weighing the five factors set forth in People v Taranovich: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” … . “The Taranovich framework is a holistic one—that is, ‘no one factor or combination of the factors . . . is necessarily decisive or determinative of the speedy trial claim'” … . People v Tyson, 2026 NY Slip Op 01446, CtApp 3-17-26

Practice Point: Consult this decision for insight into how the Taranovich factors are applied to determine whether a pre-indictment delay violates the constitutional right to a s speedy trial.

 

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DEFENSE COUNSEL MAY HAVE HAD LEGITIMATE STRATEGIC REASONS FOR FAILING TO OBJECT TO A REPUGNANT VERDICT, INCLUDING THE AVOIDANCE OF THE RISK OF RE-EXPOSING DEFENDANT TO AN ATTEMPTED SECOND-DEGREE MURDER CONVICTION; DEFENDANT DID NOT DEMONSTRATE INEFFECTIVE ASSISTANCE (CT APP).

The Court of Appeals determined defendant did not demonstrate his attorney’s failure to object to a repugnant verdict constituted ineffective assistance:

Defendant has not demonstrated a lack of strategic or other legitimate explanation for his attorney’s failure to object to the jury verdict as repugnant (see People v Benevento, 91 NY2d 708, 712 [1998]). Counsel could have declined to object to avoid the possibility that, to remedy the verdict’s repugnancy, the court might resubmit all charges to the jury, reexposing defendant to an attempted second-degree murder conviction (see CPL 310.50 [2]; People v Salemmo, 38 NY2d 357, 360-362 [1976]) That this additional conviction would not have increased defendant’s maximum sentencing exposure does not change this analysis. Sentencing exposure is not dispositive of the sentence a court ultimately imposes. Moreover, an additional felony conviction may have adverse collateral consequences and added societal stigma (see Ball v United States, 470 US 856, 865 [1985]; People v Greene, 41 NY3d 950, 951 [2024]), particularly a conviction for attempting to murder a police officer. People v Gaffney, 2026 NY Slip Op 01445, CtApp 3-17-26

Practice Point: Consult this decision for insight into when defense counsel’s failure to object to a repugnant verdict may be supported by legitimate strategic concerns—the avoidance of re-exposing defendant to charges of which he was acquitted, for example.

 

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THE EVIDENCE OF DEPRAVED INDIFFERENCE TO HUMAN LIFE WAS SUFFICIENT AND EVIDENCE OF DEFENDANT’S BIPOLAR DISORDER WAS PROPERLY PRECLUDED BECAUSE TIMELY NOTICE OF THE DEFENSE WAS NOT PROVIDED TO THE PEOPLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirmed defendant’s conviction of reckless endangerment first degree for a series of deliberate collisions with vehicles which culminated in his deliberately crashing into an occupied house. The evidence of depraved indifference to human life was deemed sufficient and evidence of defendant’s bipolar disorder was deemed properly precluded because timely notice of the defense was not provided:

The People introduced testimony from multiple witnesses who observed defendant driving erratically, “weaving” between lanes in heavy traffic, eyes open, and with a “look of rage on his face.” Over approximately three-tenths of a mile, defendant struck three vehicles, drove through a parking lot, and ultimately crashed into a house. Defendant began this course of conduct by making a “sharp right” directly into a tow truck, causing defendant’s vehicle to “lock[]” onto a car being towed and to “hang[]” from the wheel lift of the truck. After defendant’s vehicle “shook loose” from the tow truck, defendant “sped up” and “proceeded to take off” and a short time later he crashed into the rear of a van with such force that the driver hit his head on the roof. The driver felt defendant’s vehicle “pushing” him down the road. Other witnesses provided a similar description of defendant, with his hands on the steering wheel, appearing to intentionally hit the van “again and again and again,” “pushing” it forward. Defendant next crashed into the back of a third vehicle, then side-swiped the driver’s side, causing the vehicle to “hit the curb” and to “flip[] over on its roof.” A fire hydrant pierced the roof of the car one foot from the driver’s head. Defendant “took off [] fast” from this crash, drove over a sidewalk, through a motel parking lot, and crashed directly into a house, causing it to shake upon impact. Two people were inside the house at the time and heard “screeching tires” as the car approached. Crash data from the vehicle’s air bag control module showed that the brakes were not applied in the eight seconds prior to impact with the house. From this course of conduct, and the multiple witnesses who testified about defendant’s actions and demeanor, a rational jury could have concluded that defendant was aware of the risks involved in his behavior and acted without regard for whether the drivers of those vehicles, any pedestrians who might have been in the parking lot, or the people inside the house, lived or died and that, in sum, defendant displayed depraved indifference to human life. People v Bender, 2026 NY Slip Op 01444, CtApp 3-17-26

Practice Point: Consult this opinion for insight into the evidence required to support a jury’s conclusion that defendant acted with depraved indifference to human life.

Practice Point: A defendant’s failure to give timely notice of a psychiatric defense may result in preclusion of the psychiatric evidence. Here evidence of defendant’s bipolar condition was precluded because the CPL 250.10 notice was untimely.

 

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HERE THE RESITITUTION FOR THE VICTIM’S OUT-OF-POCKET MEDICAL EXPENSES WAS VACATED BECAUSE THE JUDGE DID NOT MAKE A RECORD SUPPORTING THE AMOUNT AWARDED (THIRD DEPT).

The Third Department, vacating the restitution for the victim’s out-of-pocket medical expenses, determined the judge failed to make a record of those expenses as required by Penal Law section 60.27:

Although the restitution amount did not exceed the agreed-upon limit, the record is devoid of any hearing, colloquy or judicial determination confirming the actual out-of-pocket medical expenses incurred by the victim (see Penal Law § 60.27; CPL 400.30). Absent record evidence that the restitution imposed satisfied the requirements of Penal Law § 60.27, the order of restitution must be vacated and the matter remitted to County Court for reconsideration in accordance therewith … People v Jimenez- Rivera, 2026 NY Slip Op 01421, Third Dept 3-12-26

Practice Point: Penal Law 60.27 requires record evidence of the amount of restitution for out-of-pocket medical expenses.

 

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ALTHOUGH THE JUDGE INFORMED DEFENDANT HE COULD BE SUBJECT TO AN ENHANCED SENTENCE IF HE DIDN’T APPEAR FOR THE PRESENTENCE INVESTIGATION INTERVIEW OR GOT INTO TROUBLE BEFORE SENTENCING, THE JUDGE DID NOT SPECIFICALLY INFORM DEFENDANT HE WOULD BE SUBJECT TO AN ENHANCED SENTENCE IF HE DID NOT APPEAR FOR SENTENCING; SENTENCE VACATED (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence and remitting the matter, determined defendant was not specifically informed that his failure to show up for sentencing could result in an enhanced sentence. Therefore the enhanced sentence was vacated:

In satisfaction of the indictment and other pending charges, defendant agreed to plead guilty to one count of falsely reporting an incident in the second degree and waive his right to appeal. He entered that plea upon the understanding that he would be sentenced, as a second felony offender, to two years in prison, to be followed by five years of postrelease supervision. County Court provided an oral Parker admonishment at the conclusion of the plea proceeding and warned defendant that, if he failed to appear for a scheduled presentence investigation interview or got “into further trouble, some new legal difficulties” before sentencing, it would not be bound by its sentencing commitment and could sentence him to up to four years in prison. * * *

“A sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed” … . As the People concede, County Court failed to “specifically inform [defendant] as part of the Parker admonishment that a consequence of failing to appear for sentencing was the imposition of a greater sentence” … . County Court therefore erred in imposing an enhanced sentence on that ground without first giving defendant an opportunity to withdraw his plea … . People v Gordon, 2026 NY Slip Op 01251, Third Dept 3-5-26

Practice Point: In order to impose a valid enhanced sentence if defendant fails to show up for sentencing, the judge must have specifically informed defendant of that possibility.. Here defendant was told he may receive an enhanced sentence if he didn’t attend the presentence investigation interview, which was not sufficient.

 

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NONE OF DEFENDANT’S CONVICTIONS STOOD UP TO APPELLATE SCRUTINY; THE GRAND LARCENY AND CRIMINAL IMPERSONATION CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; THE COUNTS CHARGING SCHEME TO DEFRAUD AND APPEARING AS AN ATTORNEY WITHOUT BEING ADMITTED WERE DISMISSED AS DUPLICITOUS (SECOND DEPT).

The Second Department reversed the grand larceny and criminal impersonation counts, with the People’s consent, under a weight-of-the-evidence analysis. The proof demonstrated the grand larceny counts failed because the “victims” voluntarily gave defendant the money. The criminal impersonation counts failed because the defendant did not impersonate a “real person.” The scheme to defraud and “appearing as an attorney without being admitted” counts were dismissed as duplicitous:

… [T]he counts of scheme to defraud in the first degree and practicing or appearing as an attorney without being admitted and registered were duplicitous. “A count in an indictment is void as duplicitous when it charges more than one offense” … . “Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented to the grand jury or at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … . Here, neither the verdict sheet nor the jury charge explained how the testimony and evidence adduced at trial applied to the three counts of scheme to defraud in the first degree or the three counts of practicing or appearing as an attorney without being admitted and registered, including which counts pertained to which of the complainants. Under the circumstances, the challenged counts were duplicitous because it is impossible to determine the particular acts upon which the jury reached its verdict with respect to each of the counts … . People v Rafikian, 2026 NY Slip Op 01232, Second Dept 3-4-26

Practice Point: Consult this decision for an example of dismissal of indictment counts as duplicitous. It was not possible to determine which allegation in the counts was the basis of the the jury’s decision to convict.

 

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DEFENSE COUNSEL WAS UNAVOIDABLY DELAYED IN GETTING TO COURT AND SO INFORMED THE JUDGE; IN DEFENSE COUNSEL’S ABSENCE A JUROR REQUESTED TO BE DISCHARGED BECAUSE OF THE SUDDEN DEATH OF HER FRIEND’S SON; THE DISCHARGE OF THE JUROR WITHOUT DEFENSE COUNSEL’S CONSENT REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defense motion for a mistrial should have been granted. Defense counsel, because of a child-care issue, informed the court she could not be there at 9 am but would arrive at court later in the morning. While defense counsel was absent, a juror requested to be discharged because of the sudden death of a family friend’s son. The judge discharged the juror. When defense counsel arrived she objected to the discharge of the juror without her consent and moved for a mistrial:

It is undisputed that the Supreme Court failed to adhere to the requirements of CPL 270.35. As a matter of procedure, the court, at a minimum, should have informed all parties of the substance of the inquiry and provided each side with an opportunity to be heard before making its determination to discharge the sworn juror. The court both conducted the inquiry and discharged the juror in the presence of the People and in the absence of defense counsel.

Although defense counsel was apprised with the actual specific contents of the jury note upon her arrival … , the Supreme Court’s procedural errors here were inherently prejudicial, as they deprived the defendant of an opportunity to be heard before giving meaningful notice of the contents of the note, conducting the inquiry, and discharging the juror as incapacitated … . People v Dean, 2026 NY Slip Op 01218, Second Dept 3-4-26

Practice Point: Here the discharge of a juror in defense counsel’s absence warranted a mistrial.

 

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ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT, THE EVIDENCE OF THE INTENT TO COMMIT ASSAULT SECOND, WHICH INVOLVED INJURY TO POLICE OFFICERS, DID NOT SURVIVE A WEIGHT-OF-THE-EVIDENCE ANALYSIS; THE TWO JUVENILES WERE FIXATED SOLEY UPON FIGHTING EACH OTHER THROUGHOUT THE BRIEF INCIDENT (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court in this juvenile delinquency proceeding, in a full-fledged opinion by Justice Rodriguez, determined the assault second adjudications were not supported by the weight of the evidence. Two juveniles were fighting each other and police officers were injured trying to break-up the fight. The First Department found that, because the juveniles were fixated only on fighting each other throughout the incident there was insufficient evidence of an intent to interfere with the officers’ performance of their duty:

… Penal Law § 120.05 (3) provides: “A person is guilty of assault in the second degree when: . . . 3. With intent to prevent [an] officer . . . from performing a lawful duty, . . . he or she causes physical injury to such [] officer.” Accordingly, a person is guilty of the offense when their conscious objective or purpose is to prevent an officer from performing their lawful duty, the person acts in a manner consistent with that intent, and the officer is injured … . * * *

The record … lacks any indication that appellant directed his actions at the officers, whether by turning around, throwing an elbow backward, or in some other way … . …

Similarly, the evidence at the hearing did not show beyond a reasonable doubt that appellant had even a chance to recognize and consciously disregard the officers’ directives. Matter of Cynque T., 2026 NY Slip Op 01147, First Dept 2-26-26

Practice Point: Consult this decision for insight into the factors considered under a weight-of-the-evidence analysis of criminal intent.

 

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THE PEOPLE DID NOT DEMONSTRATE DEFENDANT’S VEHICLE WAS PROPERLY IMPOUNDED; THEREFORE THE ITEMS SEIZED DURING THE SUBSEQUENT INVENTORY SEARCH SHOULD HAVE BEEN SUPPRESSED; CONVICTIONS VACATED (SECOND DEPT).

The Second Department, reversing the denial of defendant’s suppression motion and vacating the convictions, determined the People did not demonstrate the proper procedure for impounding defendant’s vehicle (which was subjected to an inventory search) was followed:

The People failed to establish the lawfulness of the impoundment of the defendant’s vehicle and subsequent inventory search … . At a suppression hearing, the arresting officer equivocated on whether or not the vehicle was parked legally on the street, and he did not testify as to the posted time limits pertaining to the parking space at which the defendant had pulled over. Although the officer testified that he had to impound the vehicle to safeguard it at the precinct station house and “for further investigation,” the People presented no evidence demonstrating any history of burglary or vandalism in the area where the defendant had pulled over the vehicle. Thus, the People failed to establish that the impoundment of the vehicle was in the interests of public safety or part of the police’s community caretaking function … . Moreover, the People failed to present any evidence as to whether the New York City Police Department had a policy regarding impoundment of vehicles, what that policy required, or whether the arresting officer complied with that policy when he impounded the defendant’s vehicle … .

Accordingly, the impoundment of the defendant’s vehicle was unlawful, and the physical evidence that was recovered from the vehicle during the inventory search subsequent to that impoundment must be suppressed as fruits of the unlawful impoundment … . People v McClarin, 2026 NY Slip Op 01076, Second Dept 2-25-26

Practice Point: Consult this decision for insight into the valid grounds and procedures for impounding a vehicle and the consequences of improperly impounding a vehicle. Here all the items seized in an inventory search after the improper impoundment were suppressed and the convictions were vacated.

 

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