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DEFENDANT’S STATEMENT THAT THERE WAS A WEAPON IN HIS BACKPACK WAS A RESPONSE TO A DIRECT QUESTION BY A POLICE OFFICER AND WAS THEREFORE NOT ADMISSIBLE AS “SPONTANEOUS;” THE STATEMENT AND THE WEAPON SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, reversing County Court, suppressed a statement made by the defendant and the handgun seized from defendant’s backpack based on defendant’s statement. Defendant’s statement that the backpack contained a weapon was not spontaneous. It was made in response to a direct question by a police officer who had possession of the backpack and could feel the weapon inside:

At the suppression hearing, the sergeant who conducted the subject search testified that, upon removing the fanny pack from defendant’s backpack, he perceived that the fanny pack was heavy and contained a hard object “shaped like a pistol.” At that point, defendant, being booked 8 to 10 feet away, offered, “I can tell you what’s in there.” The sergeant inquired, “Yeah? What’s in there?,” to which defendant replied, “It’s a pistol.” In view of defendant’s detention and arrest, the location of the search and the sergeant’s admitted knowledge that the fanny pack contained a heavy pistol-shaped object, his question asking defendant what was contained inside the fanny pack was reasonably likely to trigger an incriminating statement — i.e., that the fanny pack contained a gun. As such, County Court erred in determining that defendant’s statements were spontaneous, and they should have been suppressed … . * * *

At the hearing, the sergeant confirmed that defendant’s backpack had already been secured when defendant was detained, handcuffed and placed in the rear seat of the vehicle — although it remains unclear at precisely what point defendant’s detention ripened into an arrest. The sergeant also established that law enforcement retained control of the backpack at all times thereafter and that he carried it into the station separately as defendant was escorted by another officer and booked in a different area. Defendant’s backpack was thus not on his person or within his immediate control or “grabbable area” at the time the search was conducted so as to raise concerns over evidence destruction … .  * * * Although the circumstances presented may have, upon a different record, supported the validity of an inventory search conducted pursuant to standardized police procedures, the People neither relied upon nor developed such a theory at the suppression hearing, electing instead to defend the search solely as one incident to arrest, and any passing attempt to raise that theory now is not properly before us … . On this record, we cannot agree that the People carried their burden to overcome the presumption of unreasonableness that attaches to a warrantless search, and the physical evidence therefore should have also been suppressed … . People v Pittman, 2026 NY Slip Op 03478, Third Dept 6-4-26

Practice Point: Here the statement by defendant that there was a weapon in his backpack was made in direct response to a police officer’s question. The statement, therefore, was not admissible as “spontaneous.” The statement and the weapon seized in a search based on the statement should have been suppressed.​

 

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WITHOUT A PAT-DOWN FRISK, THE OFFICER WHO MADE THE TRAFFIC STOP DID NOT HAVE PROBABLE CAUSE TO BELIEVE DEFENDANT POSSESSED A WEAPON; THE OFFICER’S SEARCH OF DEFENDANT’S JACKET POCKETS WAS NOT, THEREFORE, JUSTIFIED BY PROBABLE CAUSE; BECAUSE THE OFFICER TESTIFIED HE DID NOT INTEND TO ARREST THE DEFENDANT AT THE TIME OF THE SEARCH, THE SEARCH WAS NOT A VALID SEARCH INCIDENT TO ARREST; SUPPRESSION OF THE SEIZED WEAPONS SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing County Court, vacating defendant’s plea and conviction, and granting the motion to suppress, determined the officer who made the traffic stop should not have searched defendant’s pockets without first doing a pat-down frisk for weapons. The search was not justified by probable cause to believe defendant possessed a weapon, and the search was not justified as a search incident to arrest. The officer testified he did not intend to arrest the defendant at the time of the search:

Although the trooper testified that he conducted the search to ensure that defendant was unarmed, the record contains no evidence that the trooper possessed a reasonable suspicion that defendant was armed or posed a threat to his safety. In any event, such a suspicion would have justified only a limited pat-down of the jacket’s exterior rather than an invasive search of its pockets. Moreover, although the trooper attempted to justify the search through testimony that he believed there was “something on the inside” of the left side of defendant’s jacket because it felt “heavier than normal,” he did not make this observation until after he had already exceeded the permissible scope of a lawful pat down by unzipping and opening defendant’s jacket. Accordingly, the search cannot be sustained as a protective pat down of defendant.

… [I]t is now well settled that, for a search to be authorized as incident to arrest, law enforcement must either actually effectuate the arrest or possess a contemporaneous intent to arrest at the time the search is conducted … .  Critically, the intent to arrest must relate to the offense purportedly justifying the search, even if the defendant is ultimately arrested for a different offense … . Absent such intent, a search cannot be retroactively legitimized based on a decision to arrest that is made only after the discovery of additional evidence during the search … . Here, the trooper’s hearing testimony unequivocally establishes that he had no intent to arrest defendant at the time he conducted the search, and that the decision to arrest was not made until after he discovered the weapon in the interior pocket of defendant’s jacket. People v Roberts, 2026 NY Slip Op 03476, Third Dept 6-4-26

Practice Point: Consult this decision for discussions of the criteria for (1) asking a driver to step out of the car after a traffic stop, (2) a protective pat-down search of the driver, (3) the search of the driver’s pockets based on probable cause, and (4) the search of driver’s pockets as a search incident to arrest.​

 

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THE PEOPLE DID NOT PROVE THE SEARCH OF DEFENDANT’S VEHICLE WAS A VALID INVENTORY SEARCH, CRITERIA EXPLAINED IN DETAIL; TWO HANDGUNS AND HEROIN FOUND IN HIDDEN COMPARTMENTS SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court, determined the search of defendant’s vehicle was not a valid inventory search. Two handguns and heroin found in hidden compartments were suppressed by the Third Department:

Although the failure to admit into evidence the relevant tow, impound or inventory search protocols is not automatically fatal, the People’s additional failure “to ask any substantive questions of the [state troopers] to establish that the policy was sufficiently standardized, that it was reasonable and that the [state troopers performing the search] followed it in this case” does become fatal … . Despite the fact that the testimony of the state troopers confirmed their general understanding of the purpose and legitimate objectives served by an inventory search, their testimony also demonstrated a lack of familiarity with any departmental protocol on how to conduct such a search or whether any protocol even existed — must less a procedure that limited their discretion … . Indeed, there was no testimony establishing the circumstances under which troopers could remove paneling or pry into compartments, such as under the steering wheel column or dashboard … . Nor was there any testimony regarding when a canine unit could be used to assist with an inventory search — and, even assuming such a protocol did exist, it would remain unclear how a canine unit could satisfy the legislative objectives required by law under the circumstances here, where defendant was in custody and the vehicle had already been towed to the State Police barracks … . While inventory search protocols either allowing or disallowing exploration into the compartment of a steering wheel column or the use of a canine unit could be “equally permissible,” having “no policy whatever” is what causes the subject search to not be “sufficiently regulated to satisfy the Fourth Amendment” … .

Moreover, the inventory form generated by the search included the loaded revolver that was found at the barracks — although the form indicated that the inventory search had been completed prior to the tow to the barracks. This fact, coupled with the realization that the items listed on the inventory form were almost entirely the hidden contraband — and not the bag on the back seat containing the Suboxone pills and loose bullet, or the other clothing and perishables testified to be in the vehicle — indicates the troopers’ search was not designed to produce a usable inventory to guard against claims of lost property or for officer safety, but to list evidence of a crime … . Accordingly, County Court should have granted defendant’s motion to suppress the evidence of heroin and the two handguns. People v Russ, 2026 NY Slip Op 03475, Third Dept 6-3-26

Practice Point: Consult this decision for an in-depth discussion of the criteria for a valid inventory search, not met here.

 

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THE SORA RISK-LEVEL GUIDELINES CONSIDER A SEX OFFENDER’S YOUTH (UNDER 20) AS AN AGGRAVATING FACTOR WARRANTING AN ASSESSMENT OF TEN POINTS; HERE DEFENDANTS ARGUED THEIR YOUTH SHOULD BE CONSIDERED A MITIGATING FACTOR; THAT ISSUE CAN ONLY BE ADDRESSED BY THE LEGISLATURE, NOT THE COURTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a three-judge concurrence, determined the defendants’ young age at the time of the offenses (below 20) was adequately taken into account by the SORA risk-level guidelines in that the guidelines assess additional points based on an offender’s youth. In other words, the guidelines consider the offender’s youth as an aggravating factor for which 10 points is assessed. The defendants’ argument that their youth should be a mitigating factor can only be addressed by the legislature, not the courts:

Defendants’ argument that scientific research suggests that young age at the time of offense lowers the risk of reoffense and so is a mitigating factor meriting a downward departure amounts to a policy dispute with the legislature’s instruction to the Board to consider that factor, and with the Board’s corresponding decision to include age below 20 at the time of first offense as a basis for the assessment of ten points in the RAI [risk assessment instrument]—not an argument that the RAI does not “fully capture the nuances of [their] case” … . It is the Board that has a “legislative mandate to promulgate” the Guidelines … , and disagreement with the basis on which a factor is premised or with the manner in which the Board implements that mandate is “for the legislature and the Board to consider, and not within the scope of this Court’s authority” … . Indeed, ” ‘[t]he constitutional principle of separation of powers . . . requires that the Legislature make the critical policy decisions’ ” … . Here, the legislature did that by instructing the Board to consider as “indicative of a high risk of repeat offense” “the age of the sex offender at the time of the commission of the first sex offense” (Correction Law § 168-l [5] [a] [v], [d]). The Board, based on its expertise and experience and within the exercise of its discretion, in turn implemented this legislative directive by requiring the assessment of points under risk factor 8 where an offender committed a first sex offense before the age of 20 … . There is no legal basis for reaching the opposite conclusion in the guise of a judicially-fashioned “mitigating” factor. The legislature, and in turn the Board, may of course reconsider this approach to age as an indicator of likelihood of reoffense. People v Carnegie, 2026 NY Slip Op 03379, CtApp 5-28-26

Practice Point: A defendant seeking a downward departure from the SORA risk-level assessment cannot argue the defendant’s youth as a mitigating factor. The guidelines consider a defendant’s youth as an aggravating factor requiring the assessment of ten points. Only the legislature can change the guidelines.

 

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ALTHOUGH A DEFENDANT CAN PROPERLY REQUEST A DOWNWARD DEPARTURE FROM THE SORA RISK-LEVEL ASSESSMENT BASED ON HIS “RELEASE ENVIRONMENT.” I.E., GAINFUL EMPLOYMENT, STRONG FAMILY SUPPORT, ETC., THE DEFENDANT MUST DEMONSTRATE THE “RELEASE ENVIRONMENT” WAS NOT ADEQUATELY TAKEN INTO ACCOUNT BY THE GUIDELINES AND HIS “RELEASE ENVIRONMENT” REDUCES THE LIKELIHOOD OF REOFFENDING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro. over a three-judge concurrence, affirming the Appellate Division, determined that a defendant’s “release environment” can be considered as a basis for a downward departure, but that the Appellate Division properly found defendant did not demonstrate his “release environment” made his reoffending less likely and his “release environment” had been adequately accounted for by the Guidelines:

In support of his downward departure request, defendant emphasized that he had been living offense-free in the community for the 3½ years since his release from incarceration and argued that there were mitigating factors not adequately accounted for by the Guidelines, including, as relevant here, his gainful full-time employment and strong family support. He explained that he had worked as a food delivery driver, obtained his commercial driver’s license, become a full-time truck driver, and eventually purchased his own tractor-trailer and founded a freight trucking business. Additionally, defendant supplemented his income by working nights and weekends parking cars as a production assistant on film sets. He viewed his recent history of full-time employment as a significant contributor to a reduced risk of reoffense, characterizing his past crimes as being “financially motivated.” In further support of this proposed mitigating factor, defendant cited to statistics documenting the difficulties faced by many formerly incarcerated people, especially sex offenders, in obtaining employment, as well as a publication concerning the importance of structured, full-time employment in preventing recidivism. To establish his alleged strong family support network, defendant referenced his committed relationship with the mother of his young child, and submitted brief letters from four family members and a former landlord asserting that he was a family-oriented man who had been rehabilitated. He also cited to Appellate Division caselaw treating strong family support as a mitigating factor. Defendant maintained that a departure to risk level one would provide adequate supervision and community notification, without overestimating his likelihood of reoffense. * * *

The potentially risk-reducing effects of … steady employment in an appropriate setting or housing with, or in close proximity to, supportive family or friends …can be asserted as mitigating circumstances … so long as the offender can establish that those circumstances are present to a degree not adequately accounted for by the Guidelines … . * * *

The Appellate Division did not err or abuse its discretion in denying defendant’s request for a downward departure. Significantly, the Court did not expressly reject defendant’s proposed mitigating factors as a matter of law, but went on to conclude that he failed to meet his burden of establishing that the proposed mitigating factors existed in this case. … [T]he Court … concluded … defendant failed * * * to demonstrate how “his support system” would reduce his risk of reoffense … . People v Green, 2026 NY Slip Op 03378, CtApp 5-28-26

Practice Point: A defendant’s “release environment” (gainful employment, family support, etc.) can be considered by a SORA court as a mitigating factor supporting a downward departure. Here the SORA court properly considered defendant’s “release environment” but determined his environment was adequately taken into account by the guidelines and defendant did not demonstrate how his “release environment” would make his reoffending less likely.​

 

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HERE THE SORA RISK-LEVEL GUIDELINES DID NOT ADEQUATELY TAKE INTO ACCOUNT DEFENDANT’S ATYPICAL CRIMINAL HISTORY; THEREFORE AN UPWARD DEPARTURE FROM LEVEL ONE TO LEVEL TWO WAS APPROPRIATE (CT APP). ​

The Court of Appeals, affirming the SORA court and the Appellate Division, determined the SORA risk-level guidelines did not adequately take into account the defendant’s criminal history which supported an upward departure to a level two sex offender:

… [A]n offender’s prior criminal history can warrant an upward SORA departure in an appropriate case. Although such history is plainly a factor “of a kind” contemplated by the Guidelines under risk factors 9 and 10, an offender’s atypical prior criminal history may be an aggravating factor “to a degree” for which the Guidelines inadequately account … .

This case proves the point. The timing, nature, and extent of defendant’s three sex offenses and violent felony supply record support for the affirmed finding that defendant’s prior criminal history was indeed atypical. Risk factor 9 relevantly assesses the maximum 30 points for a prior “violent felony, . . . misdemeanor sex crime, or endangering the welfare of a child, or any . . . sex offense” (Guidelines, risk factor 9 [emphasis added]). Defendant’s prior conviction of attempted first-degree robbery, or either of his two prior convictions of forcible touching, would thus have each independently yielded 30 points under this factor. Defendant stood convicted of all three crimes, yet he was assessed the same number of points under this factor as a defendant previously convicted of just one of them. Likewise, risk factor 10 assesses the maximum 10 points for committing the instant offense within three years at liberty after committing a felony or sex crime. Here, defendant committed the instant offense after eight months at liberty following his commission of a prior felony, yet he was assessed the same number of points under this factor as a defendant who abstains from reoffending for more than four times as long. Given these facts, the lower courts did not err in concluding that risk factors 9 and 10 inadequately accounted for defendant’s prior criminal history as an aggravating factor. People v Townsend, 2026 NY Slip Op 03377, CtApp 5-28-26

Practice Point: Where the SORA risk-level guidelines do not adequately take into account a defendant’s atypical criminal history, an upward departure is appropriate.

 

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DEFENDANT PLANNED WITH TWO OTHERS TO ROB THE VICTIM; THE FACTS THAT THE DEFENDANT WAS MERELY PRESENT DURING THE ROBBERY AND DID NOT RECEIVE ANY OF THE STOLEN CASH DID NOT NEGATE THE FACT THAT DEFENDANT SHARED THE ACCOMPLICES’ INTENT; THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing County Court’s dismissal of the robbery indictment, determined the evidence was sufficient to support defendant’s liability as an accomplice. Defendant planned to rob the victim with two others. Defendant knew the victim and set up a meeting with him. As planned, defendant’s accomplices robbed the victim at gunpoint during the meeting with defendant. Defendant later picked up the two accomplices, who were still wearing masks. Defendant convinced the victim to not report the robbery. $3000 was stolen, but defendant received none of it:

Viewing the evidence in the light most favorable to the People, the evidence was legally sufficient to establish the defendant’s commission of the charged crimes as an accomplice. The defendant’s conduct before, during, and after the commission of the robbery established his shared intent to commit the crime of robbery … . People v Symns, 2026 NY Slip Op 03325, Second Dept 5-27-26

Practice Point: Mere presence during a robbery is not enough for accomplice liability. But here, although he did not participate in the theft of the victim’s cash at gunpoint and did not receive any of the cash, defendant participated in the planning of the robbery, transported his accomplices to and from the robbery scene, and arranged the meeting with the victim at the robbery scene. His actions before and after the robbery demonstrated he shared the intent of the persons who executed the robbery and therefore defendant was properly indicted as an accomplice.

 

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THE AGREEMENT WHICH PROMPTED DEFENDANT’S GUILTY PLEA WAS SUBSEQUENTLY DETERMINED TO BE ILLEGAL BECAUSE IT PROMISED PROBATION FOR A D FELONY; ONCE IT WAS CLEAR DEFENDANT MUST BE SENTENCED TO INCARCERATION, THE JUDGE GAVE THE DEFENDANT THE OPTION TO WITHDRAW HIS PLEA, WHICH HE DECLINED TO DO; SENTENCE AFFIRMED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, affirming the Appellate Division, determined defendant’s guilty plea should not be vacated. Defendant unsuccessfully argued that the plea agreement had not been honored by the prosecutor. The plea agreement was unenforceable because it called for an illegal sentence—probation for a D felony. Once it was clear defendant must be sentenced to incarceration, the judge gave defendant the option of withdrawing his guilty plea, which he declined to do. The opinion is fact-intensive and cannot be fairly summarized here. People v Flesch, 2026 NY Slip Op 03258, CtApp 5-26-26

 

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THE STENOGRAPHER DELIBERATELY FAILED TO TRANSCRIBE PORTIONS OF THE TRIAL TESTIMONY, INSTEAD RECORDING “BLAH, BLAH, BLAH,” “OMITTED,” AND “UNTRANSCIBABLE;” THE APPELLATE DIVISION PROPERLY SENT THE MATTER BACK FOR A RECONSTRUCTION HEARING AND THE RECONSTRUCTED TESTIMONY WAS SUFFICIENT TO PROTECT DEFENDANT’S RIGHT TO AN APPEAL (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, affirming the Appellate Division, determined (1) the Appellate Division, holding the appeal in abeyance, properly sent the matter back for a reconstruction hearing because the seriously flawed trial transcript omitted testimony, and (2) the reconstruction of the transcript was adequate to allow appellate review. Defendant’s conviction was affirmed:

During the trial of Joseph A. Meyers, the primary stenographer failed to capture substantial portions of the proceedings and frequently recorded “blah blah blah,” “blah blah,” “omitted,” “untranscribable” or undecipherable characters instead of the words actually spoken. Those transgressions by the court reporter were first discovered during the pendency of Mr. Meyers’s appeal. The Appellate Division ordered a reconstruction hearing, at which Supreme Court took testimony from the trial judge who heard the case, the attorneys who tried it and court clerks who helped administer it, and also supplemented the record with the extensive notes the judge took during the trial. Although Supreme Court did not, at the conclusion of the reconstruction hearing, identify the contents of the reconstructed record, the Appellate Division affirmed Mr. Meyers’s convictions based on the original trial record as supplemented by the proof established at the reconstruction hearing. The core issues before us are: (1) whether the Appellate Division appropriately ordered a reconstruction hearing instead of summarily reversing Mr. Meyers’s criminal convictions and ordering a new trial; and (2) if the Appellate Division properly required a reconstruction hearing, whether that hearing produced a record sufficient to protect Mr. Meyers’s right to an appeal that comported with due process. Although the transcript prepared by the court reporter at trial is utterly inexcusable, we affirm the Appellate Division’s holding that, on the unique facts of this case, the results of the reconstruction hearing were sufficient to protect Mr. Meyers’s right to an appeal. People v Meyers, 2026 NY Slip Op 03261, CtApp 5-26-26

Practice Point: Consult this opinion for insight into how trial testimony omitted from the transcribed record can be reconstructed such that defendant’s right to an appeal is protected.

 

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THE MURDER TOOK PLACE ON NOVEMBER 20; DEFENDANT WAS ARRESTED FOR POSSESSION OF A WEAPON ON NOVEMBER 21 AND INDICTED ON THAT CHARGE ALONE; SUBSEQUENTLY, BASED ON FORENSIC EVIDENCE (BALLISTIC AND DNA), DEFENDANT WAS SEPARATELY INDICTED FOR MURDER COMMITTED WITH THE SAME WEAPON ON NOVEMBER 20; THE MAJORITY CONCLUDED DEFENDANT WAS PROPERLY INDICTED SEPARATELY BECAUSE THE TWO OFFENSES WERE NOT PART OF “THE SAME CRIMINAL TRANSACTION” (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, affirming the Appellate Division, determined defendant was properly separately indicted for (1) possession of a weapon and (2) using that weapon to commit murder. Criminal Procedure Law 40.40(2) prohibits separate indictments for joinable offenses. The majority concluded that the possession-of-a-weapon was not part of the “same criminal transaction” as the murder:

Defendant contends that County Court properly dismissed the murder indictment under CPL 40.40 (2) and, as relevant here, argues that the charges were part of the same criminal transaction because there was no break in possession between her use of the weapon in the murder on November 20, 2021 and her possession of the weapon the next day, November 21. The prosecution responds that the passage of time between defendant’s completion of the homicide on November 20 and her subsequent apprehension on November 21 while in possession of the firearm used to commit the offense separates the criminal acts into different criminal incidents, allowing separate prosecution of the possession and the murder charges. The prosecution has the better argument. We conclude that the Appellate Division properly denied defendant’s motion to dismiss and reinstated the murder indictment. People v Harris, 2026 NY Slip Op 03260, CtApp 5-26-26

Practice Point: Here criminal possession of a weapon on November 21 and murder using that same weapon on November 20 were deemed offenses which were not part of the same criminal transaction. Therefore the two offenses were properly indicted separately. The separate indictments did not violate the prohibition of separate indictments for joinable offenses in CPL 40.40(2).

 

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