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THERE WAS NO EVIDENCE DEFENDANT, WHO WAS FOLLOWING THE SHOOTER’S CAR, WAS AWARE THE SHOOTER INTENDED TO KILL A RIVAL GANG MEMBER, OR EVEN AWARE THE SHOOTER WAS ARMED; THEREFORE THE CONSPIRACY TO COMMIT MURDER CHARGE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined defendant’s motion for a trial order of dismissal should have been granted. Defendant was following the shooter’s car when the shooter shot and killed a member of a rival gang. There was no evidence defendant knew the shooter intended to kill or even that the shooter was armed. Therefore the evidence did not demonstrate that defendant shared the shooter’s intent to kill:

While the evidence, viewed in the light most favorable to the People, showed that the defendant conspired with others to retaliate against rival gang members, it failed to establish that the defendant entered into a conspiracy with the goal of committing murder in the second degree … . The People failed to present direct or circumstantial evidence establishing that the defendant was aware that Kelson or Oliveras were armed or had the intent to commit murder or that the defendant, in fact, joined a conspiracy with the goal of committing murder … . For the same reasons, the evidence was insufficient to establish that the defendant believed that he was rendering aid to a person who intended to commit murder. People v Hewitt, 2026 NY Slip Op 03184, Second Dept 5-20-26

Practice Point: Consult this decision for insight into the proof necessary for a conspiracy-to-commit-murder conviction. There must be evidence the defendant shared the killer’s intent, not the case here.

 

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HERE COUNTY COURT DID NOT OFFER ANY RATIONALE FOR EMPANELING AN ANONYMOUS JURY AND NONE IS APPARENT FROM THE RECORD; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s convictions and ordering a new trial, determined the judge should not have empaneled an anonymous jury:

We turn next to defendant’s argument that County Court erred by empaneling an anonymous jury — that is, by referring to prospective jurors “only by numbers and initials, with neither the attorneys nor [the] spectators knowing the jurors’ names.” On that, the record clearly bears out that County Court improperly empaneled an anonymous jury in clear violation of CPL former 270.15 … . However, acknowledging that no objection was raised before the trial court, defendant first argues that doing so constituted a mode of proceedings error. As we recently determined on two separate occasions, that contention is without merit … . We may nevertheless reach the issue as a matter of our discretion in the interest of justice (see CPL 470.15 [6] [a]). In assessing whether it is appropriate to do so, “we consider the totality of the circumstances, including the nature of the statutory violation, the explanation offered by the trial court and the potential for prejudice to the defendant” … ..

We agree with defendant’s contention that reversal is warranted based upon the totality of the circumstances. Although the empaneling of an anonymous jury may be appropriate under certain limited circumstances, where, as here, there is “no ‘factual predicate for the extraordinary procedure,’ ” to do so was error … . Indeed, there is no dispute that County Court failed to provide any rationale for doing so, and “[t]he record does not reflect any concern regarding juror safety, intimidation or interference, nor any circumstances that would otherwise warrant the use of an anonymous jury” … . Moreover, unlike those cases where defense counsel was made aware of the juror names … , the record is devoid of any indication that such occurred here, “which materially heightens the risk of prejudice” … . We therefore exercise our interest of justice jurisdiction, reverse and remit for a new trial. People v Zakrzewski, 2026 NY Slip Op 03029, Third Dept 5-14-26

Practice Point: Although improperly impaneling an anonymous jury is not a mode of proceedings error, and no objection was raised to the anonymous jury at trial, because there appears to have been no rationale for using an anonymous jury, the Third Department, in the interest of justice, reversed defendant’s convictions and ordered a new trial.

 

HERE THE INDICTMENT PURPORTED TO CHARGE CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE THIRD DEGREE, WHICH REQUIRES POSSESSION OF 1/2 OUNCE OR MORE, BUT THE FACTUAL RECITATION IN THE INDICTMENT ASSERTED POSSESSION OF 1/8 OUNCE OR MORE; THE INDICTMENT IS JURISDICTIONALLY DEFECTIVE AND MUST BE DISMISSED (THIRD DEPT).

The Third Department, reversing County Court, determined the indictment was jurisdictionally defective and must be dismissed. The indictment purported to charge criminal possession of a controlled substance in the third degree, which requires possession of 1/2 ounce or more, but the factual recitation in the indictment asserted defendant possessed 1/8 ounce or more:

As the factual allegations effectively negated an essential element of the particular crime sought to be charged (i.e., the requisite aggregate weight of 1/2 ounce or more) and altered the theory upon which the People proceeded in prosecuting defendant, the indictment was jurisdictionally defective … . Regardless of statements made by defendant during the plea allocution regarding the aggregate weight of the substance he possessed, such statements are insufficient to cure the defects in the indictment. As the indictment negated an essential element of the purported crime charged, we are constrained to reverse the conviction and dismiss the indictment as jurisdictionally defective … . People v Head, 2026 NY Slip Op 03028 Third Dept 5-14-26

Practice Point: Here a discrepancy between the amount of a controlled substance required by the statute and the amount asserted in the factual recitation in the indictment rendered the indictment jurisdictionally defective.

 

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THE JUDGE’S FAILURE TO MENTION THE POSTRELEASE SUPERVISION (PRS) COMPONENT OF THE SENTENCE RENDERS THE PLEA UNCONSTITUTIONAL; THE ISSUE NEED NOT BE PRESERVED (FIRST DEPT).

The First Department, vacating defendant’s plea, determined the judge never informed the defendant of the postrelease supervision (PRS) component of the sentence. The court noted that the issue may be raised for the first time on appeal. The issue need not be preserved by a motion to withdraw the plea or vacate the conviction:

The record does not establish that the court advised defendant when he pleaded guilty that the sentence would include a period of PRS. Consequently, the plea “cannot be deemed knowing, voluntary and intelligent” … , and it must be vacated.

Where a trial judge does not fulfill the obligation to advise a defendant of PRS during the plea allocution, “the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a post-allocution motion” … . The prosecution’s reference to its offer of PRS at the plea proceeding does not change this conclusion where the court itself never mentioned PRS at the plea proceeding … . Similarly, defendant’s failure to move to withdraw the plea or vacate the judgment of conviction does not bar him from raising the issue at this time. People v Ndiaye, 2026 NY Slip Op 03080, First Dept 5-14-26

Practice Point: A guilty plea is not “knowing, voluntary and intelligent” if the judge fails to mention the postrelease supervision (PRS) component of the sentence.

 

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AFTER A TRAFFIC STOP, THE POLICE HAD PROBABLE CAUSE FOR A WARRANTLESS SEARCH OF DEFENDANT’S AUTOMOBILE FOR EVIDENCE OF DWI; DURING THE SEARCH THE POLICE OPENED A CLOSED BOX AND DISCOVERED A FIREARM; REVERSING SUPREME COURT, THE SECOND DEPARTMENT DETERMINED THE POLICE HAD PROBABLE CAUSE TO SEARCH FOR ALCOHOL IN THE CLOSED BOX (SECOND DEPT).

The Second Department, reversing Supreme Court on the People’s appeal, determined the police, after a traffic stop, had probable cause to search the defendant’s car for evidence of DWI. The police therefore had probable cause to open a closed box which could have contained alcohol, but in fact contained a firearm:

… Supreme Court credited the officers’ testimony that the defendant apparently had been drinking, and those factual findings and credibility determinations are entitled to great deference on appeal … . Thus, the police had probable cause to search the vehicle for evidence of the crime of operating a motor vehicle while under the influence of alcohol as a misdemeanor.

“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search” … , which may include closed containers … “found therein in which there was probable cause to believe that the [contraband] may be found” … .

The scope of a warrantless search of a vehicle is defined not by the nature of the container in which the contraband is secreted, but by the object of the search and the places in which there is probable cause to believe that it may be found … . The relevant inquiry here is not whether the cardboard box could physically hold an open container of alcohol, but whether there was reason to believe that it did … .

Here the cardboard box containing the gun was unsealed and heavy, indicating it was not empty. Further the defendant moved his hands under the seat when he was stopped, indicating he may have been secreting contraband in the box. The issue was whether that search could extend to the cardboard box. The label on the box stating that it originally contained “lithium battery portable power station” was not particularly significant since the box was not new, was unsealed, and was of a size and shape that could store a variety of objects, including an alcohol bottle or a gun.  People v Perry, 2026 NY Slip Op 03005, Second Dept 5-13-26

Practice Point: Upon a traffic stop, evidence the driver had been drinking authorized a warrantless search of every part of the car for alcohol. Because there was reason to believe a closed box could contain alcohol, the police were authorized to search the box and seize the firearm inside.

 

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IF A DEFENDANT CHALLENGES THE LEGALITY OF HIS ARREST, THE PEOPLE MUST PROVE THE ARREST WAS BASED UPON PROBABLE CAUSE; THE ISSUANCE OF AN I-CARD DEMONSTRATING PROBABLE CAUSE IS NOT, BY ITSELF, ENOUGH; THERE MUST BE TESTIMONY AT THE SUPPRESSION HEARING DEMONSTRATING THE ARREST WAS IN FACT BASED ON THE INFORMATION IN THE I-CARD (SECOND DEPT).

The Second Department, reversing the denial of defendant’s motion to suppress his statements, determined the People did not prove the legality of defendant’s arrest at the suppression hearing. An I-card demonstrating probable cause for defendant’s arrest had been issued by the police two months before the arrest. But no one testified that the arrest was based upon the information in the I-card:

At a suppression hearing, a detective testified that he had generated still images and wanted flyers from a video of the alleged robbery, circulated the still images and wanted flyers throughout the police department, and activated an I-card for the defendant’s arrest, and that the defendant was apprehended by the Queens Warrant Squad nearly two months later. The arresting officers did not testify at the suppression hearing, nor did the detective testify about the circumstances of the arrest. After the hearing, the Supreme Court, among other things, denied that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials. The defendant thereafter pleaded guilty to attempted assault in the first degree. The defendant appeals.

When a defendant challenges the admission of statements he or she has made, claiming they are the product of an illegal arrest, the People bear the burden of going forward to establish the legality of the police conduct in the first instance … . Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of an officer in possession of information sufficient to constitute probable cause for the arrest … .

Here, the People failed to present evidence sufficient to establish that the arresting officers stopped and arrested the defendant on probable cause allegedly communicated by the I-card … . Contrary to the People’s contention, the issuance of an I-card nearly two months before the defendant’s arrest, standing alone, was insufficient to establish that the officers who stopped and detained the defendant were actually acting upon the direction of an officer in possession of information sufficient to constitute probable cause … . People v Moreno, 2026 NY Slip Op 03004, Second Dept 5-13-26

Practice Point: The existence of an I-card does not, by itself, demonstrate an arrest was based on probable cause. There must be testimony by the arresting officer that the arrest was, in fact, based upon the information in the I-card.

 

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EVEN IF DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, THE JUDGE SO INFORMED HIM AND HE ACKNOWEDGED THE CONSEQUENCES ON THE RECORD; THEREFORE DEFENDANT WAS UNABLE TO SHOW HE WAS PREJUDICED BY THE ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction by guilty plea on ineffective assistance grounds should have been denied. Even if defense counsel had failed to inform defendant of the deportation-consequences of his guilty plea, the defendant was made aware of them by the judge:

The defendant failed to establish, sufficiently to warrant an evidentiary hearing, that his counsel’s allegedly deficient advice deprived him of the effective assistance of counsel under either the federal or state constitutional standards … . It is clear from the record of the plea proceeding that prior to accepting the plea, the court advised the defendant that he may be subject to deportation as a result of his plea of guilty. The defendant acknowledged his understanding thereof and confirmed that he wished to plead guilty. Under the circumstances of this case, even if defense counsel had failed to advise the defendant of the possible immigration consequences of pleading guilty, the defendant was indisputably aware of those possible consequences before he entered his favorable plea … . Accordingly, the defendant cannot show prejudice resulting from defense counsel’s alleged failure to provide that advice himself … , and there is no reasonable probability that the defendant would not have pleaded guilty but for defense counsel’s alleged deficiency … .  People v Lewis, 2026 NY Slip Op 03001, Second Dept 5-13-26

Practice Point: Here defendant’s motion to vacate his conviction by guilty plea based upon ineffective assistance of counsel should have been denied without a hearing. Even if defense counsel was ineffective in failing to inform defendant of the deportation consequences of his plea, defendant was not prejudiced because the judge so informed him.

 

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THE ALLEGATIONS THAT DEFENDANT’ GRABBED PLAINTIFF’S SHOULDERS AND TOUCHED PLAINTIFF’S CHEEKS DID NOT STATE CAUSES OF ACTION FOR TORTIOUS “FORCIBLE TOUCHING” OR FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; COMPLAINT DISMISSED OVER AN EXTENSIVE DISSENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, over an extensive dissent, reversing Supreme Court, determined this lawsuit alleging a tortious “forcible touching” and intentional infliction of emotional distress should have been dismissed:

Plaintiff alleges that during the summers from 2000 through 2003, he worked in the wardrobe department of Roanoke Island Historical Association (RIHA), where defendant Long also worked. According to plaintiff, during that period there were numerous instances where Long committed acts of sexual misconduct toward plaintiff. The most egregious occurred in 2002, when Long engaged in nonconsensual sex with plaintiff while plaintiff was intoxicated. Plaintiff alleges that six years later, in 2008, after not having had any contact with Long, he briefly encountered Long in a public costume shop where Long grabbed plaintiff’s shoulders and touched plaintiff’s cheeks. * * *

Supreme Court erred in denying defendant Long’s motion to dismiss the complaint pursuant to CPLR 3211, as defendant established that plaintiff’s allegations do not “fit within any cognizable legal theory” … . Plaintiff failed to properly allege facts sufficient to establish a tort that would constitute forcible touching under Penal Law § 130.52(1). Long’s alleged acts of grabbing plaintiff’s shoulders and touching his cheeks “with the intimacy of a grandmother greeting her grown grandchild” were not, under the circumstances, sexual or intimate in nature, as required by the statute.

Penal Law § 130.52(1) was enacted in 2000. It states that “a person is guilty of forcible touching when such person intentionally, and for no legitimate purpose forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire.” “[F]orcible touching includes squeezing, grabbing or pinching” … . * * *

Plaintiff’s shoulders and cheeks did not constitute “sexual or intimate parts” that were “sufficiently personal or private that [they] would not be touched in the absence of a close relationship between the parties” … . Thus, Long’s acts of grabbing plaintiff’s shoulders and touching his cheeks were not, under the circumstances, sexual or intimate in nature, as necessary to state a claim for forcible touching … . Watson v Roanoke Is. Historical Assn., 2026 NY Slip Op 02949, First Dept 5-12-26

Practice Point: Consult this decision for insight into the allegations necessary to state a cause of action for tortious “forcible touching.”

 

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THE JUDGE’S ERROR IN REFUSING TO GRANT A BRIEF ADJOURNMENT WHEN THE PEOPLE BELATEDLY OFFERED A REBUTTAL WITNESS HAD A “SPILL-OVER-EFFECT” TAINTING THE OTHER COUNTS; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined (1) the court erred in not granting the defense an adjournment when the People belatedly offered rebuttal testimony, and (2) the “spill-over-effect” of that error tainted the convictions:

The trial court may, in the exercise of its discretion, receive belatedly disclosed rebuttal testimony, ” ‘but before doing so, it must, upon application of the … . We therefore conclude that County Court erred when, after granting the prosecution’s request to offer rebuttal proof on Monday, it then denied defendant’s application for any adjournment before the prosecution called its rebuttal witness … . Given that proof of defendant’s guilt without the rebuttal witness’ testimony was “not overwhelming,” the error cannot be deemed harmless … .

In determining whether an error in the proceedings relating to one count requires reversal of the conviction of other jointly tried counts, we apply “[s]pillover analysis” and evaluate “the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . “[I]f there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way,” reversal is required (id. [internal quotation marks and citations omitted]). Because resolution of all three counts here hinged on the jury’s assessment of the victims’ credibility and the veracity of the defense claims, there is a reasonable possibility that the decimation of defendant’s alibi by the rebuttal evidence meaningfully influenced the jury’s guilty verdict on the 2018 count … . The rebuttal proof, received without affording defendant a brief adjournment to investigate, cast defendant’s alibi witness as unscrupulous and incredible. Under these unusual circumstances, we reverse defendant’s convictions and order a new trial on all counts … . People v Shaver, 2026 NY Slip Op 02895, Second Dept 5-7-26

Practice Point: An error affecting the proof of one count may have a “spill-over-effect” and taint the remaining counts, requiring a new trial.

 

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NEW YORK’S “TOLLING” PROVISION FOR PREDICATE FELONIES REQUIRES ONLY A MATHEMATICAL CALCULATION TO DETERMINE HOW LONG THE TEN-YEAR LOOK-BACK IS EXTENDED BY PERIODS OF A DEFENDANT’S INCARCERATION; THEREFORE THERE IS NO NEED FOR A JURY TO MAKE FACTUAL FINDINGS BEFORE THE LOOK-BACK CALCULATION CAN BE MADE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined that New York “tolling provision,” which extends the ten-year look-back for predicate felonies by the amount of time defendant was incarcerated, is a purely mathematical calculation that does not require consideration by a jury:

…New York’s tolling provision requires a determination of whether the defendant was incarcerated and, if so, the dates of incarceration (see Penal Law §§ 70.06[1][b][iv],[v]; 70.08[1][b]). Thus, the tolling provision requires “rote arithmetic calculation to be made based on certified public records” … . The determination is completely objective. There is no assessment of defendant’s conduct or culpability. Rather, it is a determination of the amount of time a defendant was incarcerated between a previous conviction and the instant offense. There need only be a review of the official records of incarceration—i.e., when the defendant was admitted into the facility, when the defendant was released and any time in between. People v Young, 2026 NY Slip Op 02883, First Dept 5-7-26

Practice Point: Consult this opinion for insight into the nature and application of New York’s predicate-felony “tolling” provision.

 

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