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THE ATTEMPTED RAPE AND ROBBERY CONVICTIONS WERE “AGAINST THE WEIGHT OF THE EVIDENCE” (FOURTH DEPT).

The Fourth Department, reversing the attempted rape and robbery convictions, determined there was insufficient evidence defendant intended to have intercourse with the victim there was insufficient evidence defendant intended to deprive the victim of her emergency alarm which he possessed only briefly and then discarded. The convictions were deemed “against the weight of the evidence.” The defendant was an inmate in a correctional facility and the victim a civilian employee. The defendant attacked and fell on top of the victim after following her to a secluded area of the prison kitchen. The assault conviction was affirmed:

… [W]e conclude that the People failed to prove beyond a reasonable doubt that defendant intended and attempted to have sexual intercourse with the victim. Beyond the surrounding circumstances, such as the location of the attack and defendant’s insistence that the victim be quiet, the sole evidence presented by the People from which a factfinder could infer any sexual component to defendant’s actions was the victim’s testimony that, after they fell to the floor and defendant was on top of her, defendant’s “hands were all over [her] at that point.” The victim further acknowledged, however, that defendant never physically reached underneath any of her clothing and never attempted to remove her pants. Unlike comparable cases, the People here adduced no evidence of a particularized sexual motivation or component underlying defendant’s actions, nor did the People present evidence—beyond the generalized testimony that defendant’s hands were “all over” the victim—that defendant attempted to engage specifically in sexual intercourse with the victim … . Even though “the absence of an explicit demand for sex does not undermine a finding of attempted rape” under circumstances from which a factfinder could reasonably conclude that the defendant intended and attempted to engage, specifically, in forcible sexual intercourse … , we conclude that the evidence is not strong enough to establish the existence of such circumstances in this case. People v Jenkins, 2026 NY Slip Op 04677, Fourth Dept 7-24-26

Practice Point: Consult this decision for two rare examples of “against the weight of the evidence” reversals.

 

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THE JUDGE DID NOT MAKE THE REQUISITE “SEARCHING INQUIRY” BEFORE ALLOWING DEFENDANT TO REPRESENT HIMSELF; DECISION RESERVED AND MATTER SENT BACK (FOURTH DEPT).

The Fourth Department, reserving decision on this appeal of the denial of a suppression motion, determined the trial judge did not conduct the requisite “searching inquiry” before allowing the defendant to represent himself:

As defendant contends and the People correctly concede, the court failed to conduct a sufficient inquiry into his request to represent himself. “[A]n application to proceed pro se must be denied unless defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel . . . To this end, trial courts must conduct a ‘searching inquiry’ to clarify that defendant understands the ramifications of such a decision” … . In other words, a “searching inquiry” is required to “warn defendant of the risks inherent in representing [themself]” and to “apprise [them] of the value of counsel” … , including that “going pro se would be ‘extraordinarily dangerous’ and ‘that most defendants who represent themselves are not successful’ ” … . “When a record lacks the requisite ‘searching inquiry’ or fails to measure up to the prescribed standards, a waiver of the right to counsel will be deemed ineffective” … .

Here, the court erred in allowing defendant to proceed pro se inasmuch as it did not “undertake a searching inquiry . . . to insur[e] that . . . defendant [was] aware of the dangers and disadvantages of proceeding without counsel” … . We conclude that “the tainted proceeding had an adverse impact on defendant” … and, therefore, we hold the case, reserve decision, and remit the matter to Supreme Court for further proceedings in accordance with our prior determination … . People v Ocasio, 2026 NY Slip Op 04595, Fourth Dept 7-24-26

Practice Point: Consult this decision for a discussion of the “searching inquiry” a judge must engage in before allowing a defendant to represent himself.

 

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THE FAILURE TO GIVE THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR HERE, BUT WAS HARMLESS ERROR IN THE CODEFENDANT’S APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defense request for a circumstantial evidence jury instruction should have been granted. Defendant and his uncle were charged with murder, robbery and criminal possession of a weapon. The uncle was convicted and the Fourth Department ruled that the failure to give the circumstantial evidence jury instruction was harmless error. However the evidence against defendant was weaker and the jury charge may well have led to an acquittal:

… [W]e agree with defendant that the court erred in denying the request for a circumstantial evidence charge … . As we noted in the codefendant’s appeal, “[a]lthough surveillance video footage of a crime can constitute direct evidence . . . , it did not constitute direct evidence here. Defendant’s identity cannot be discerned clearly from the surveillance video footage offered at trial inasmuch as the perpetrators in the videos are masked” … .

We concluded in the codefendant’s appeal that the court’s failure to give the circumstantial evidence charge was harmless given that the codefendant and his vehicle could be tracked to the scenes of the offenses based upon cell phone data, license plate readers, and surveillance video (McEnnis, 247 AD3d at 1475-1476). Here, however, the evidence of defendant’s involvement was substantially less. While one perpetrator on the surveillance video generally matched defendant’s height and build, no witness identified him at the scene of any of the robberies. Moreover, as the People’s expert acknowledged, the expert had “no location information” for defendant’s phone at the times that the alleged incidents occurred. Although the evidence at trial established that defendant exchanged text messages and calls with the codefendant on the dates of the offenses and that the codefendant drove to defendant’s apartment building in Niagara Falls prior to and after the offenses, the People’s expert conceded that he could do little more than “speculate [as to] where [defendant] was during [those] periods of time” when the robberies were being committed. Thus, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Coleman, 2026 NY Slip Op 04629. Fourth Dept 7-24-26

Practice Point: Defendant and his uncle were charged with murder and robbery and tried separately. The failure to give the circumstantial evidence jury instruction was harmless error in the uncle’s trial. But it was reversible error in defendant’s trial because the evidence tying defendant to the crimes was weaker.

 

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THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; MANSLAUGHTER CONVICTION REVERSED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s manslaughter conviction, determined the People did not disprove the justification defense. The evidence demonstrated shots were fired at the car in which defendant was a passenger before defendant fired his weapon:

A person is justified in using deadly physical force against another person if they “reasonably believe[ ] that such other person is using or about to use deadly physical force” (Penal Law § 35.15 [2] [a]). Deadly physical force “encompasses not merely the striking of the first blow or infliction of the first wound. It also encompasses acts by a person that cause the defendant reasonably to believe that the defendant is facing the ‘imminent threat’ of deadly force,” and therefore “the imminent threat to use a gun constitute[s] the threat of deadly physical force even if the gun is never fired” … . The evidence at trial established that defendant told the police that the unnamed assailants started shooting at the occupants of the vehicle before any shots were fired by those inside the vehicle. A witness to the shootout testified that she saw one of the unnamed assailants remove a gun out of his pocket and then she saw and heard gunshots. The evidence further established that multiple rounds were fired at the vehicle from the outside. Contrary to the People’s contention, they did not establish beyond a reasonable doubt that defendant, who was not the driver of the vehicle, could have retreated with complete personal safety before he used deadly physical force, or that he knew he could do so … . People v Major, 2026 NY Slip Op 04585, Fourth Dept 7-24-26

Practice Point: Multiple shots were fired at the vehicle in which defendant was a passenger before defendant fired his weapon. The People failed to disprove the justification defense and the manslaughter conviction was reversed.

 

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TO RENDER THE “HARMLESS ERROR” DOCTRINE INAPPLICABLE, THERE MUST BE “OVERWHELMING” EVIDENCE OF GUILT, WHICH IS MORE THAN “PROOF BEYOND A REASONABLE DOUBT;” HERE THERE WAS “OVERWHELMING” EVIDENCE OF GUILT FOR THE BURGLARY COUNTS, BUT ONLY “PROOF BEYOND A REASONABLE DOUBT” FOR THE SHARED INTENT ELEMENT OF THE ASSAULT COUNT; THEREFORE THE ERROR IN ADMITTING IDENTIFICATION EVIDENCE COULD NOT BE DEEMED HARMLESS FOR THE ASSAULT COUNT AND A NEW TRIAL ON THAT COUNT WAS ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s assault conviction, determined the evidence defendant shared the codefendant’s intent to cause physical injury was not “overwhelming,” therefore the harmless error standard did not apply. The error, which was deemed harmless for other counts for which the evidence was deemed “overwhelming,” was the introduction of identification evidence where no CPL 710.30 notice was provided by the People. The motion court determined the identification was “confirmatory,” but the Fourth Department disagreed because the victim only met defendant once for a few minutes:

An identification is considered confirmatory only where, “as a matter of law, the witness is so familiar with the defendant that there is ‘little or no risk’ that police suggestion could lead to a misidentification” … . “In effect, it is a ruling that however suggestive or unfair the identification procedure might be, there is virtually no possibility that the witness could misidentify the defendant” … . The exception “does not apply where the familiarity emanates from a brief encounter” … .

Here, the victim testified at the Rodriguez hearing that he had met defendant only once before the crimes were committed, and then for only a few minutes. Under the circumstances, it cannot be said, as a matter of law, that there was ” ‘little to no risk’ ” of misidentification resulting from an unduly suggestive photo array or identification procedure … . * * *

The People were required to prove, among other things, that defendant shared the codefendant’s intent to cause physical injury to the victim, and they proved beyond a reasonable doubt that defendant shared the requisite intent by presenting evidence that defendant punched the victim upon entering the apartment, albeit with no discernable effect. Overwhelming proof of guilt, however, is a greater burden than proof beyond a reasonable doubt … and, in our view, the evidence as it relates to the intent element of assault in the second degree does not satisfy that burden. The harmless error doctrine is thus inapplicable with respect to the assault charge … . We therefore modify the judgment by reversing that part convicting defendant of assault in the second degree, granting the part of the omnibus motion seeking preclusion of the identification testimony, and granting defendant a new trial on count 3 of the indictment. People v Hurst, 2026 NY Slip Op 04717, Fourth Dept 7-24-26

Practice Point: This decision highlights a difference between a “legal sufficiency” and a “weight of the evidence” analysis on appeal. Under a “weight of the evidence” analysis, if the proof of guilt is “beyond a reasonable doubt” (i.e., legally sufficient), but is not “overwhelming,” the harmless error doctrine in inapplicable. [EDITOR’S NOTE: I HAVE DIFFICULTY UNDERSTANDING THE CRITERIA FOR “LEGAL INSUFFICIENCY” VERSUS “AGAINST THE WEIGHT OF THE EVIDENCE” AT THE APPELLATE LEVEL. THIS DECISION APPEARS TO ILLUSTRATE ONE OF THE DIFFERENCES. IF ANYONE CAN HELP ME UNDERSTAND THE RELEVANT ANALYTICAL CRITERIA, I WOULD BE MOST GRATEFUL.]

 

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THE FAILURE TO GIVE THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR HERE, BUT WAS HARMLESS ERROR IN THE CODEFENDANT’S APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defense request for a circumstantial evidence jury instruction should have been granted. Defendant and his uncle were charged with murder, robbery and criminal possession of a weapon. The uncle was convicted and the Fourth Department ruled that the failure to give the circumstantial evidence jury instruction was harmless error. However the evidence against defendant was weaker and the jury charge may well have led to an acquittal:

… [W]e agree with defendant that the court erred in denying the request for a circumstantial evidence charge … . As we noted in the codefendant’s appeal, “[a]lthough surveillance video footage of a crime can constitute direct evidence . . . , it did not constitute direct evidence here. Defendant’s identity cannot be discerned clearly from the surveillance video footage offered at trial inasmuch as the perpetrators in the videos are masked” … .

We concluded in the codefendant’s appeal that the court’s failure to give the circumstantial evidence charge was harmless given that the codefendant and his vehicle could be tracked to the scenes of the offenses based upon cell phone data, license plate readers, and surveillance video (McEnnis, 247 AD3d at 1475-1476). Here, however, the evidence of defendant’s involvement was substantially less. While one perpetrator on the surveillance video generally matched defendant’s height and build, no witness identified him at the scene of any of the robberies. Moreover, as the People’s expert acknowledged, the expert had “no location information” for defendant’s phone at the times that the alleged incidents occurred. Although the evidence at trial established that defendant exchanged text messages and calls with the codefendant on the dates of the offenses and that the codefendant drove to defendant’s apartment building in Niagara Falls prior to and after the offenses, the People’s expert conceded that he could do little more than “speculate [as to] where [defendant] was during [those] periods of time” when the robberies were being committed. Thus, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Coleman, 2026 NY Slip Op 04629. Fourth Dept 7-24-26

Practice Point: Defendant and his uncle were charged with murder and robbery and tried separately. The failure to give the circumstantial evidence jury instruction was harmless error in the uncle’s trial. But it was reversible error in defendant’s trial because the evidence tying defendant to the crimes was weaker.

 

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DEFENDANT’S SHOWING A HANDGUN TO HER EX-BOYFRIEND DID NOT CONSTITUTE “DISPLAYING” THE WEAPON IN FURTHERANCE OF THE OFFENSE; THEREFORE THERE WAS NO IMPEDIMENT TO REMOVING THE SEVENTEEN-YEAR-OLD DEFENDANT’S “CRIMINAL POSSESSION OF A WEAPON” CASE TO FAMILY COURT (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Nowak, over an extensive dissent, determined the seventeen-year-old defendant’s showing her ex-boyfriend a handgun she had on her person dis not amount to “displaying” the weapon such that the case could not be removed to Family Court:

… [D]efendant was charged with a violent felony (see Penal Law § 70.02 [1] [b]), and thus the People could prevent removal to Family Court without a formal motion under one of the CPL 722.23 (2) (c) exceptions, i.e., as relevant here, that defendant “displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of [the charged] offense[s]” (CPL 722.23 [2] [c] [ii]; see Penal Law §§ 265.02 [3]; 265.03 [3]). * * *

… [D]efendant did not “further” her possession of the weapon merely by displaying it to her ex-boyfriend, even if she did so to emphasize her control of the handgun … .Every display of a handgun emphasizes control by the person possessing it, and thus every display would always further the charged offense. So too with the dissent’s proposed construction. Every display of a weapon provides evidence of possession—it is not possible to display the weapon without possessing it—and thus there would always be a “logical nexus” between a display and the possessory offense … . Either reading would effectively render meaningless the separate statutory requirement that the display “further[ ]” the charged offense (CPL 722.23 [2] [c] [ii]). Had the legislature wished to do so, it could have required that the People demonstrate only that the adolescent offender “displayed” a designated weapon, and stopped there, without also requiring that the offender did so “in furtherance of” the charged offense (CPL 722.23 [2] [c] [ii]). That language must be given effect and interpreted to require something more than merely displaying the weapon … . People v Neyshaliz M. V., 2026 NY Slip Op 04581, Fourth Dept 7-24-26

Practice Point: Consult this opinion for a discussion of what it means to “display” a weapon “in furtherance” of the charged offense (criminal possession of a weapon). Merely showing the weapon to defendant’s ex-boyfriend did not amount to displaying the weapon in furtherance of the offense.

 

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PRESENTING THE GRAND JURY WITH EVIDENCE SUBSEQUENTLY RULED IRRELEVANT DID NOT AMOUNT TO PROSECUTORIAL MISCONDUCT WARRANTING DISMISSAL OF THE INDICTMENT (FOURTH DEPT). ​

The Fourth Department, in a full-fledged opinion by Justice Curran, reversing County Court, determined the prosecutor’s presentation of evidence to the grand jury which was subsequently ruled irrelevant did not amount to misconduct warranting dismissal of the indictment. Defendant drove his car at high speed in poor road conditions. The car left the road, crashed and burned. The two passengers were killed. Defendant was charged with criminally negligent homicide. Driving at a high speed in poor road conditions, without more, will not support criminally negligent homicide. The prosecutor presented evidence of a blood test which indicated defendant had used marijuana to meet the criteria for criminally negligent homicide. When County Court determined the marijuana evidence was irrelevant because there was no proof the marijuana-use affected defendant’s ability to operate the car, County Court dismissed the indictment. The Fourth Department found that the presentation of the irrelevant evidence was not “prosecutorial misconduct” which justified dismissal of the indictment:

… [W]e conclude that the court erred in granting defendant’s renewed motion on the ground that the grand jury proceedings were rendered defective due to prosecutorial misconduct. At the outset, it is worth noting what is not at issue here. Specifically, we note that there is no evidence in this case that the People, in introducing the cannabinoid evidence to the grand jury, intentionally engaged “in an over-all pattern of bias and misconduct” that was “pervasive” and “willful” (Thompson, 22 NY3d at 699 [internal quotation marks omitted]). There also is no evidence that, in introducing the challenged evidence, the prosecutor was “motivated by bias or a desire to deceive the grand jury” (id. at 706) or that there was any “nefarious design to deliberately cause unfairness to defendant” (People v Wisdom, 23 NY3d 970, 973 [2014]).

Rather, the court’s conclusion that the People had impaired the integrity of the grand jury proceedings through misconduct was predicated on its determination that the People had improperly introduced the cannabinoid evidence—evidence that was later found to be irrelevant. In so concluding, the court failed to explain how the People’s reliance on the allegedly flawed cannabinoid evidence met the dismissal standard set forth by the Court of Appeals in the aforementioned cases. Indeed, it is quite clear from those decisions that a mere error or flaw by a prosecutor in presenting evidence does not, in fact, meet the demanding test for establishing entitlement to dismissal due to the impairment of the integrity of the grand jury proceedings … . People v Stencel, 2026 NY Slip Op 04574, Fourth Dept 7-24-26

Practice Point: Consult this opinion for a discussion of the nature of prosecutorial misconduct at the grand jury stage which mandates dismissal of the indictment, not the case here.

 

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WHEN DEFENDANT TOLD THE JUDGE “MY LAWYER IS INEFFECTIVELY COUNSELING ME” THE JUDGE MADE NO INQUIRY INTO THE BASIS FOR THE STATEMENT AND SHUT DOWN ANY FURTHER STATEMENTS BY THE DEFENDANT; THE MAJORITY CONCLUDED THAT WAS REVERSIBLE ERROR; THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing the conviction and ordering a new trial, over a dissent, determined the judge’s failure to conduct any inquiry when defendant requested new counsel was reversible error:

A defendant may be entitled to new counsel “upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel … . The defendant’s request “may not be used merely to delay the orderly administration of justice” … . It must be supported by “specific factual allegations of serious complaints about counsel” … . Once the court determines that defendant’s request is not “merely to delay” but is “seemingly serious,” the court is required to make a minimal inquiry before exercising its discretion to grant or deny substitution of counsel … .

However, before the court can determine whether the defendant’s allegations are sufficiently serious to warrant minimal inquiry, it must at the very least allow the defendant the opportunity to make the allegations … . Thus, this Court has repeatedly held that a defendant is entitled to a new trial where the trial court “denied [a] request for new counsel without making any inquiry into the substance of his request, and without giving defendant any opportunity to explain the basis for his request” … . * * *

In this case, after jury selection was complete and as the jurors were about to enter the courtroom, defendant told the court, “I feel I’m not getting a fair trial. I’m not even prepared for a trial. My lawyer, my lawyer is ineffectively counseling me . . . . [a]nd also representing me.” The court responded that “You made your record” and “I’m not relieving your counsel. Don’t interrupt me.” Defendant tried to continue his request and stated, “I asked for a lab report. He gave me a field test.” The courtinterjected and instructed defendant to “not interrupt me” and warned that “[i]f you do this kind of behavior, particularly if the jury is here, it’s going to be a problem, okay. So just get yourself under control.” The court’s admonition effectively foreclosed any further discussion. People v Cooper, 2026 NY Slip Op 04561, First Dept 7-23-26

Practice Point: When a defendant tells the judge he is not being effectively represented by counsel, the judge should make at least a minimal inquiry. Here the failure to make any inquiry into the basis of defendant’s statement was deemed reversible error.

 

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WHERE THE SENTENCING JUDGE ORDERS DOCCS TO ENROLL DEFENDANT IN A SHOCK PROBATION PROGRAM, DOCCS CANNOT CONSIDER THE ORDER TO BE MERELY A RECOMMENDATION WHICH CAN BE IGNORED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined the Department of Corrections and Community Supervision (DOCCS) did not have the discretion to treat Supreme Court’s order to enroll petitioner in the shock probation program as a recommendation which need not be implemented. Although the petitioner had been released from incarceration, the Third Department considered the case as an exception to the mootness doctrine:

… [W]hen applying the literal language of Penal Law § 60.04 (7) (a) and Correction Law § 865 (1), the most rational interpretation of the statutes is that, when the same sentencing judge imposes concurrent sentences on convictions for an eligible drug offense and another non-enumerated offense, the sentencing judge’s directive to enroll an eligible incarcerated individual into the shock incarceration program upon the conviction for the qualifying drug offense is binding on DOCCS, so long as the conviction on the additional non-drug offense is not one of the disqualifying offenses listed in Correction Law § 865 (1). Matter of Adams v Martuscello, 2026 NY Slip Op 04542, Third Dept 7-23-26

Practice Point: Absent a statutory exception, DOCCS must implement a sentencing judge’s order to enroll defendant in the shock probation program.

 

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